EVOLUTION  OF  LAW: 

SELECT  READINGS   ON  THE   ORIGIN  AND   DEVELOPMENT 
OF  LEGAL  INSTITUTIONS 

Volume  I 


SOURCES- 


OF 


ANCIENT  AND  PRIMITIVE  LAW 


COMPILED   BY 

ALBERT   KOCOUREK 

PROFESSOR   OF   JURISPRUDENCE    IN   NORTHWESTERN    UNIVERSITY 
AND 

JOHN   H.  WIGMORE 

PROFESSOR   OP    LAW    IN   NORTHWESTERN   UNIVERSITY 


BOSTON 

LITTLE,   BROWN,  AND   COMPANY 

1915 


Copyright^  1915, 
By  Little,  Brown,  and  Company. 


All  rights  reserved. 


Published,  March,  1915 


^\& 


j^o^tV 


Setup  and  electrotyped  by  J.  S.  Gushing  Co.,  Norwood,  Mass. ,  U.S.A. 
Presswork  by  S.  J.  Parkhill  &  Co. ,  Boston,  Mass. ,  U .  S.A. 


Es  ist  vorbei. 

"  Mephistopheles. 

Vorbei !  ein  dummes  Wort. 

Warum  vorbei? 

Vorbei  und  reiries  Nichts,  vollkommnes  Einerlei  1 

Was  soil  uns  denn  das  ew'ge  Schaffen ! 

Geschaffenes  zu  nichts  hinwegzuraffen  ! 

*  Da  ist's  vorbei ! '    Was  ist  daran  zu  lesen  ? 

Es  ist  so  gut,  als  war'  es  nicht  gewesen, 

Und  treibt  sich  doch  im  Kreis,  als  wenn  es  ware." 

—  Goethe. 


"  If  by  any  means  we  can  determine  the  early  forms  of  jural 
conceptions,  they  will  be  invaluable  to  us.  These  rudimentary 
ideas  are  to  the  jurist  what  the  primary  crusts  of  the  earth  are 
to  the  geologist.  They  contain,  potentially,  all  the  forms  in 
which  law  has  subsequently  exhibited  itself.  The  haste  or  the 
prejudice  which  has  generally  refused  them  all  but  the  most 
superficial  examination,  must  bear  the  blame  of  the  unsatisfac- 
tory condition  in  which  we  find  the  science  of  jurisprudence." 

—  Maine. 


"Nous  en  conclurons  que  la  science  du  droit  n'est  pas  une 
science  deductive  tir^e  d'axiomes  et  de  principes  necessaires,  que 
c'est  une  science  inductive  dont  les  principes  sont  des  generalisa- 
tions de  I'experience  anterieure ;  que,  par  consequent,  ce  n'est 
pas  seulement  du  raisonnement  pur,  mais  du  d^veloppement 
historique  des  legislations  passees,  en  meme  temps  que  de  la  com- 
paraison  entre  elles  des  legislations  actuelles,  que  doit  s'inspirer  le 
juriste  pour  expliquer,  pour  systematiser,  et  pour  reformer  au 

besoin  le  droit  existant." 

—  Brissaud. 


"Sodann  ist  schon  die  Verkniipfung  mit  dem  Vergangenen 

darum  wichtig,  damit  die  ganze  Kulturbildung  nicht  verseichtet 

und  versandet;  denn  nur  auf  dem  Boden  der  Geschichte  kann 

sich  eine  Kultur  gestalten." 

—  Josef  Kohler. 


PREFACE 

The  department  of  legal  history  deals  with  particulars,, with 
the  special  and  concrete  details  of  a  legal  system ;  while  the 
field  of  historical  jurisprudence  is  universals,  the  general  and 
abstract  phases  of  legal  evolution.  This  collection  of  readings 
does  not  aim  to  present  the  sequences  of  facts  attached  to  the 
names  of  men,  places,  and  things,  necessary  (as  is  now,  perhaps, 
almost  universally  admitted)  to  an  understanding  of  legal  rules 
as  they  obtain  here  or  there  ;  but  is  intended  as  an  exposition 
of  the  law  (to  use  the  language  of  Mr.  Justice  Holmes)  "  as  a 
great  anthropological  document."  Therefore  these  volumes 
properly  will  be  classified  on  the  side  of  what  is  thus,  somewhat 
vaguely,  called  historical  jurisprudence  or  legal  ethnology. 

We  need  not  insist  too  much  upon  the  claim  that  an  acquaint- 
ance with  the  anthropology  of  the  law  has  a  direct,  tangible, 
and  quantitative  bearing  on  the  isolated  manifestations  of  the 
law  as  expressed  in  the  daily  conflicts  of  practical  life.  Nor 
yet  would  we  disparage  the  thought  that  a  general  survey  of 
the  course  of  legal  evolution  has  a  measurable  qualitative  rela- 
tion to  the  complex,  and,  at  times,  discordant  play  of  modern 
legal  phenomena,  —  at  least  for  those  who  looking  into  the  vessel 
of  life  reflect  that  "  the  Eternal  Saki  from  that  bowl  has  poured 
millions  of  bubbles  like  us,  and  will  pour."  Moreover,  to  ad- 
vocate such  study  on  the  ground  of  the  creation  or  discovery 
of  a  new  discipline  will  fail  to  persuade ;  there  are  already 
disciplines  enough.  And,  again,  an  appeal  to  the  informative 
value  of  this  learning,  while  the  easiest  method  of  justification 
for  a  prevailing  curiosity  into  what  is  strange  and  bizarre,  is 
not  the  claim  which  this  undertaking  prefers  to  support. 

Not,  therefore,  as  a  positive  instrument  concretely  applicable 
to  the  details  of  an  existing  legal  technic,  —  not  as  a  mental 
gymnastic,  —  not  to  satisfy  a  natural  interest,  —  but  rather  as 
tending  to  chart  in  broad  outline  the  march  of  humanity  in  its 
effort  to  govern  itself  and  work  out  its  destiny,  is  the  conscious 

vii 


VUl  PREFACE 

purpose  of  these  readings.  They  are  offered  in  the  belief  that 
the  day  is  not  far  distant  when  the  students  of  the  law,  the 
teachers  of  the  law,  and  the  examiners  in  the  law  will  be  dis- 
satisfied with  an  equipment  of  knowledge  which  attempts  only 
the  dogmatic  side,  and  neglects  the  universal,  and  even  the 
specific  historical  background  of  legal  institutions. 

It  need  hardly  be  said  to  any  one  whose  vision  has  extended 
to  genetic  and  comparative  knowledge  of  the  institutions  of 
society,  that  the  present  is  not  understood  without  information 
concerning  the  past,  and  that  the  future  must  remain  a  greater 
enigma  than  it  is,  without  an  attempt  to  penetrate  the  course 
of  evolution.  Historical  knowledge  must,  and  will,  always 
remain  the  one  certain  test  of  present  expediency,  and  the  sci- 
entific tool  for  measuring  the  paths  of  the  ages  to  come.  It  is 
unmistakable  that  the  law  of  all  progressive  countries  is  under- 
going rapid  changes,  easily  observable  even  within  the  span  of 
the  last  generation.  Only  the  intolerant  reactionary,  or  the 
technical  stickler  whose  sense  of  perspective  is  destroyed  by 
the  details  of  his  craft,  can  fail  to  observe  the  motion  of  the 
stream.  The  revolutionary  also  may  find  miich  in  the  stolid 
processes  of  history  which  defies  the  human  will  and  carries 
out  purposes  of  its  own.  Every  reader  will  interpret  his  own 
philosophy  of  history,  and  construct  his  own  generalizations. 
But  certain  it  is,  that  from  the  evidence  of  man's  struggle  in 
countless  ages  to  achieve  human  society,  there  may  be  con- 
structed philosophies  and  generalizations  important  enough  in 
a  large  sense,  if  not  also  in  terms  of  immediate  use,  as  instru- 
ments of  knowledge  to  be  worthy  of  serious  attention. 

The  philosophies  will  oscillate  between  the  mechanical  pan- 
theism, on  one  side,  of  Post,  and  the  view  of  Hegel,  on  the  other, 
that  history  is  the  "  actualization  of  the  universal  spirit."  The 
compilers  have  not  sought  here  to  solve  any  problems  of  their 
own,  or  to  ventilate  any  theories ;  and  naturally  they  do  not 
offer  in  these  volumes  anything  as  a  final  solution  of  the  prob- 
lems involved.  When  a  solution  is  presented,  it  is  tendered 
only  as  a  basis  of  discussion,  and  a  motive  for  further  inquiry. 
Especially  it  is  sought  to  avoid  any  suggestion  of  espousal  of 
an  ultimate  metaphysical  position  as  to  the  meaning  and  value 
of  history.  Nevertheless  an  intermediate  working  thesis  is 
necessary  to  vindicate  the  very  existence  of  this  compilation. 
It  is  found  in  the  essential  unity  of  human  nature.  This  is 
explanatory  of  the  existence  of  a  similarity  of  institutions 
among  a  diversity  of  peoples  where  the  principle  of  imitation 
is  inadmissible.     It  furnishes  the  distinguishing  marks  of  the 


PREFACE  IX 

phases  and  stages  of  legal  evolution,  and  provides  at  least  one 
of  the  important  tests  of  legislative  policy.  To  go  farther 
would  trespass  on  a  privilege  reserved  for  the  reader. 

The  field  of  historical  knowledge  is  to-day  so  extensive  that 
a  great  variety  of  rendering  was  possible  in  execution  of  the 
purposes  of  this  compilation.  A  collection  of  this  nature,  al- 
though governed  by  a  principle  of  unity,  is  still  liable  to  be 
charged  with  various  sins  of  omission  and  commission.  In  this 
respect,  it  is  much*  like  an  anthology,  where  the  personal  choice 
of  the  compiler  as  to  the  flowers  of  the  garden  to  be  plucked 
will  differ  in  one  way  and  another  from  the  judgment  of  every 
other  person  in  the  world.  The  risk  of  displeasing  every  one 
at  some  point  is  therefore  inevitable. 

Primarily  these  readings  have  been  projected,  as  an  intro- 
duction to  the  study  of  specific  legal  systems,  for  use  in  law 
schools  which  are  now  limited  to  the  classic  text  of  Maine's 
"Ancient  Law."  Secondarily  (only  in  intention,  but  equally 
and  perhaps  greater  in  advantage)  these  readings  may  be  em- 
ployed by  the  lawyer  who  has  completed  the  conventional 
course  of  legal  studies,  and  by  the  cultured  general  reader  who 
seeks  to  find  in  the  history  of  legal  institutions  man's  most 
important  effort  to  emerge  from  the  night  of  savagery  to  the 
light  of  civilization. 

The  plan  of  the  present  work  dealing  with  Ancient  and 
Primitive  Law  involves  three  volumes.  The  first  is  a  compi- 
lation of  sources  selected  from  (i)  ancient  literatures,  (ii)  mod- 
ern observations  of  retarded  peoples,  (iii)  ancient  laws,  and 
(iv)  legal  transactions,  including  trials  and  documents.  The 
second  selects  chapters  from  modern  scholars  expounding  the 
relation  of  law  to  general  social  institutions,  and  such  specific 
legal  institutions  as  Family,  Property,  Contract,  etc.  The 
third  volume  will  select  similar  chapters  interpreting  the  form- 
ative influences  which  have  governed  the  development  of  the 
law.  The  present  undertaking,  therefore,  aims  to  present  an 
outline,  chiefly  of  the  rudimentary  and  basic  part  of  legal  evolu- 
tion, and  incidentally,  for  purposes  of  comparison,  ancient  law. 
Similar  treatment  of  developed  and  modern  institutions  is 
another  distinct  program. 

The  course  of  the  work  proceeds  from  the  purely  concrete 
as  shown  in  the  first  volume  to  the  abstract  as  represented  in 
the  third  volume.  As  legal  history  has  hitherto  been  taught, 
the  student  has  been  learnedly  instructed  in  the  meaning  and 
influence  (let  us  say)  of  such  laws  as  the  Twelve  Tables  or  the 
Lex  Salica  without  having  read-^these  laws  themselves.     This 


X  PREFACE 

we  believe  is  a  fundamental  error.  With  the  successful  issue 
of  the  case  method  before  our  eyes,  which  is  spreading  to  other 
fields  from  the  law,  we  begin  by  placing  in  the  hands  of  the 
reader  the  best  evidence  of  ancient  law,  either  the  law  itself, 
when  there  is  written  law,  or  an  ancient  record  from  general 
literature  of  customary  law,  when  there  is  no  written  law. 
Primitive  peoples  are,  in  a  similar  way,  made  known  by  the 
record  of  trained  observers.  This  method  of  presentation  was 
regarded  as  indispensable. 

With  the  exception  of  Mr.  Henderson's*  compilation  of  the 
*'  Historical  Documents  of  the  Middle  Ages  "  (which  is  com- 
parable to  the  first  volume)  we  believe  that  no  similar  under- 
taking has  been  attempted  in  English,  and  the  indulgence  of 
the  learned  critic  will  be  presumed  in  this  attempt  to  treat  in 
a  pioneer  way  the  large  field  entered.  Some  harmless  incon- 
sistency of  arrangement  will  be  evident  to  the  expert,  but 
absolute  logical  symmetry  was  unattainable  without  necessary 
disadvantages.  The  combination  of  ancient  and  primitive  law 
itself  results,  in  fact,  in  inconsistency.  Barring  the  contro- 
versy provoked  by  the  term  "  primitive  "  (for  what  is  the  test 
of  "  primitive  "  ?)  there  are  examples  of  ancient  law  as  modern 
in  conception  as  anything  seen  in  the  world  to-day.  A  "  citi- 
zen of  a  modern  city  would  probably  feel  more  at  home  in 
ancient  Babylon  than  in  medieval  Europe  "  (Johns,  "  Baby- 
lonian and  Assyrian  Laws,"  p.  vii).  Why,  it  may  be  asked, 
are  such  things  combined  with  the  legal  mores  of  the  Kaffirs,  the 
red  Indians,  and  the  Eskimos  ? 

The  fact  of  this  combination  of  conflicting  elements  within 
the  same  volume  has  developed  the  problem  of  space  limita- 
tions, and  for  this  reason  original  notes  and  bibliographies  are 
omitted.  Such  notes  of  our  own  as  were  not  to  be  avoided 
are  put  in  square  brackets. 

Further  explanation  might  appear  to  attach  more  importance 
to  our  part  in  assembling  the  writings  of  others,  than  we  desire 
to  assert.  But  it  needs  to  be  said  that  the  present  selections 
are  substantially  only  an  outline,  and  represent  the  irreducible 
minimum  of  what  is  to  be  compassed  by  the  student  who 
approaches  this  subject.  In  particular,  it  may  be  suggested, 
also,  that  what  is  here  presented  is  only  the  external  shell  of  legal 
evolution.  The  internal  life  of  this  development  must  be  con- 
structed by  other  agencies  than  history,  —  which  is  after  all  only 
the  more  or  less  satisfactory  appearance  of  the  reality  within. 

The  compilers  desire  to  make  grateful  acknowledgment  to 
the  various  authors  and  publishers  represented  in  this  Series 


ADDENDUM    TO    PREFACE  XI 

for  their  generous  cooperation  in  our  plans,  and  it  should  be 
urged  that  the  selections  which  appear  in  this  Series,  while 
adequate  to  the  object  sought,  do  not  fairly  represent  the  value 
of  the  works  from  which  they  are  taken. 

The  compilers  also  express  their  indebtedness  to  Elbert  H. 
Gary,  Esq.,  of  New  York  City,  for  his  ample  provision  of  mate- 
rials consulted  in  the  Gary  Library  of  Ancient  and  Primitive 
Law  (in  Northwestern  University). 

A.  K., 
J.  H.  W. 


ADDENDUM   TO   PREFACE 

Twenty-five  years  ago,  while  living  in  Japan,  I  became 
interested  in  the  sources  of  old  Japanese  law.  On  turning  over 
its  then  unpublished  materials,  I  discovered  that  its  institu- 
tions, point  for  point,  showed  parallel  legal  ideas,  and  sometimes 
(amidst  influences  totally  independent)  a  striking  similarity  of 
development  with  the  Occident.  I  was  led  to  study  these  ideas 
from  the  comparative  point  of  view.  As  yet  a  novice  in  the 
world  of  legal  thought,  I  came  under  the  fascination  of  what 
is  called  comparative  law  (or,  as  it  may  preferably  be  named, 
universal  legal  ideas).  And  I  felt  a  wish  and  hope  to  cultivate 
that  field  especially. 

The  wbrld-wide  spell  of  Maine's  "  Ancient  Law  "  (published 
nearly  a  generation  before)  was  still  unique.  Fustel's  "  Ancient 
City,"  its  contemporary  in  France,  had  established  a  new  point 
•of  view.  Little  or  nothing  more  had  been  done  by  Anglo- 
American  scholars;  Tylor,  Lubbock,  Morgan,  MacLennan,  had 
not  emphasized  the  legal  element  in  evolution,  nor  its  continuity 
and  universality.  ,  Even  on  the  Continent  the  science  of  com- 
parative law  was  but  summoning  its  adherents  and  marshal- 
ling its  materials.  Dareste  was  just  publishing  (1889)  his  first 
series  of  "Etudes."  Post's  "  Ursprung  des  Rechts  "  (1876), 
"  Bausteine  "  (1880),  and  ''  Grundlagen  "  (1884),  were  begin- 
ning to  receive  a  hearing.  Kohler's  "  Zeitschrift "  had  been 
started  a  decade  before  (1878).  Tarde's  "Transformations  du 
droit  "  (1893),  Letourneau's  "  Evolution  juridique  "  (1891),  and 
Leist's  "  Alt-arisches  jus  "  (1889, 1892),  were  yet  in  manuscript. 

In  a  published  study  (now  forgotten  by  the  learned  world) 
on  "  The  Pledge-Idea,"  I  satisfied  myself  there  were  great 
possibilities  in  the  tracing  of  the  evolution  of  universal  legal 
ideas.     I  can  see  now,  in  the  light  of  what  others  have  since 


XU  ADDENDUM    TO    PREFACE 

done,  how  much  more  there  is  in  the  philosophy  of  the  sub- 
ject than  I  then  imagined.  But  that  early  experience  con- 
vinced me  in  a  personal  way  that  the  subject  had  a  real  claim 
upon  us  and  a  great  future,  —  immensely  greater  than  the  then 
state  of  the  literature  might  indicate. 

Circumstances  obstructed  my  wish  to  pursue  the  task,  and 
it  was  laid  aside  as  a  dream.  But,  through  the  kindness  of  my 
colleague,  the  opportunity  has  now  after  all  been  afforded  to 
me  to  take  a  share  in  the  work  awaiting  to  be  done  in  this 
fascinating  field. 

I  obtrude  here  this  personal  statement  because  I  have  a  sen- 
timental interest  in  thus  returning  to  the  science  of  my  early 
hopes.  And  it  will  perhaps  be  interesting  to  some  to  be 
reminded  how  long  we  have  been  waiting  in  Anglo-America 
to  take  up  into  our  scientific  legal  thought  the  study  of  this 
culminating  and  comprehensive  subject.  Maine's  inspiring 
call  has  echoed  all  through  these  fifty  years.  For  part  of  that 
time,  the  materials  for  general  study  were  perhaps  hardly 
worth  while.  But  now  they  are  plentiful.  The  hope  of  the 
editors  of  this  work  is  that  it  will  provide  at  once  a  stimulus 
and  an  opportunity  for  a  general  interest  in  the  subject,  and 
will  help  it  to  take  its  rightful  place  in  legal  studies. 

J.  H.  W. 


TABLE   OF   CONTENTS 

PART  1 

GENERAL   LITERATURE   CONTAINING 

REFERENCES  TO  ANCIENT  AND  PRIMITIVE 

LAW  AND   INSTITUTIONS 


CHAPTER  I 

PAQB 

The  Iliad 3 

Translated  by  Andrew  Lang  and  others. 


CHAPTER  II 
The  Odyssey         .        .        . 27 

Translated  by  S.  H.  Butcher  and  Andrew  Lang. 

CHAPTER  III 

Plutarch's  Lives  .        .        . 59 

Translated  by  John  Dryden  and  others. 

CHAPTER   IV 
CiESAR's  Commentaries •       •        ,88 

CHAPTER  V 
Tacitus'  Germania      .        . 95 

Translated  by  Arthur  Murphy. 

CHAPTER  VI 

The  Njals  Saga 122 

Translated  by  George  Webbe  Da  sent. 

xiii 


XIV  TABLE    OF    CONTENTS 


PART   II 


MODERN   OBSERVATIONS   OF  RETARDED 
PEOPLES    - 

CHAPTER  VII 

PAGB 

The  Urabunna  Tribe 21S 

By  Baldwin  Spencer  and  F.  J.  Gillen. 

CHAPTER  VIII 

The  Point  Barrow  Eskimos 237 

By  John  Murdoch. 

CHAPTER   IX 

The  Seri  Indians 257 

By  W  J  McGee. 

CHAPTER  X 

Wyandot  Government 279 

By  J.  W.  Powell. 

CHAPTER   XI 
Kafir  Law 292 

Section  1.     The  Amaxosa  Tribes 292 

By  Rev.  H.  H.  Dugmore. 
Section  2.     Tambookie  Usages 31S 

By  Warner. 

CHAPTER   XII 

Fanti  Customary  Law .        .        .    32ft 

By  John  M.  Sarbah. 

PART   III 
ANCIENT   AND   PRIMITIVE   LAWS   AND   CODES 

CHAPTER  XIII 
Ancient  Accadian  Laws 385 

Translated  by  Rev.  A.  H.  Sayce. 


TABLE    OF    CONTENTS  XV 

CHAPTER   XIV 

PAOS 

The  Code  of  Hammurabi 387 

Translated  by  W.  W.  Davie s. 

CHAPTER   XV 
The  Pentateuch 44^ 


CHAPTER  XVI 

Edict  of  Harmhab 

Translated  by  James  H.  Breasted. 


cs> 


CHAPTER   XVII 

The  Laws  of  Gortyn 45^ 

Translated  by  H.  J.  Roby. 

CHAPTER  XVIII 

The  Twelve  Tables 465 

Translated  by  John  H.  Wigmore. 

CHAPTER  XIX 

Laws  of  Manu 469» 

Translated  by  Georg  Buhler. 

CHAPTER  XX 
The  Lex  Salica 50O 

Translated  by  Ebnest  F.  Henderson. 

CHAPTER  XXI 
King  JEthelbirht's  Dooms 512 

Translated  by  Benjamin  Thorpe. 

CHAPTER  XXII 
Laws  of  Howel  Dda 51^ 

Translated  by  Aneurin  Owen. 


XVI  TABLE    OF    CONTENTS 

PART    IV 
ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS 

CHAPTER  XXIII 

PAQB 

Trials 557 

Section  1.     Egyptian 557 

No.  1.     The  Inscription  of  Mes 557 

(Rameses  II) 
Translated  by  Ala.n  Gardiner. 
No.  2.     A  Conspiracy  Case         .         .         .        .        .        .         .     564 

(Rameses  III) 
Translated  by  P.  Le  P.  Renouf. 

No.  3.     Spoliation  of  Tombs 571 

(Rameses  IX  ) 
-^  Translated  by  P.  J.  De  Horrack. 

Section  2.     Babylonian 581 

No.  1.     Defense  of  a  Magistrate 581 

Translated  by  H.  Fox  Talbot. 

No.  2.     Law-suit  concerning  a  Slave 583 

Translated  by  Jules  Oppert. 

Section  3.     Grecian 587 

Demosthenes'  Oration  against  Aristocrates       ....     587 
Translated  by  Charles  R.  Kennedy. 

Section  4.     Roman 620 

No.  1.     Gains  —  The  Sacramental  Action         ....     620 
Translated  by  David  Nasmith. 

No.  2.     Cicero's  Oration  for  Milo 623 

Translated  by  C.  D.  Yonge. 

Section  5.     Germanic .     660 

Formulae  Liturgicae 660 

Translated  by  Ernest  F.  Henderson. 

CHAPTER  XXIV 

Documents 665 

Section  1.     Egyptian 665 

No.  1.     A  Will  (4th  Dynasty) 665 

Translated  by  James  H.  Breasted. 
No.  2.     The  Contracts  of  Hepzeli  (12th  Dynasty)    .         .         .667 
Translated  by  James  H.  Breasted. 


TABLE    OF    CONTENTS  XVU 


PAGE 


No.  3.     Marriage  Contract  (31st  Dynasty)        .        .         .         .     678 

Translated  by  E.  Revillout. 

Section  2.     Babylonian  and  Assyrian 680 

No.  1.     Early  Babylonian  Legal  Documents  (1st  Dynasty)      .     680 

Translated  by  Herman  Ranke. 
No.  2.     Later  Contract  Tablets 685 

Translated  by  Theo.  G.  Pinches. 
No.  3.     Assyrian  Contract  Tablets    ......     689 

Translated  by  Rev.  A.  H.  Satce. 
No.  4.     Assyrian  Deeds 691 

Translated  by  Jules  Oppert. 
No.  5.     Contract  Tablets  relating  to  Belshazzar       .        .         .     694 

Translated  by  Rev.  A.  H.  Sayce. 
No.  6.     Cuneiform  Tablets  of  Kappadokia       ....     696 

Translated  by  Rev.  A.  H.  Sayce. 
No.  7.     WilV  of  Sennacherib      .         .         .        .        .        .         .702 

Translated  by  Rev.  A.  H.  Sayce. 


SOURCES  OF  ANCIENT  AND  PRIMITIVE  LAW 

PART   I 

GENERAL  LITERATURE 

Containing  Reference  to  Ancient  and  Primitive  Law 
AND  Institutions 

Chapter  I 
THE  ILIAD 

Translated  by  Andrew  Lang  and  others 

Chapter  II 
THE   ODYSSEY 

Translated  by  S.  H.  Butcher  and  Andrew  Lang 

Chapter  III 

PLUTARCH'S  LIVES 

Translated  by  John  Dryden  and  others 

Chapter  IV 
CJBSAR'S  COMMENTARIES 

Chapter  V 
TACITUS'   GERMANIA 

Translated  by  Arthur  Murphy 

Chapter  VI 
THE  NJALS  SAGA 

Translated  by  George  Webbe  Dasent 


EVOLUTION  OF  LAW 

Volume  I 
SOURCES  OF  ANCIENT  AND   PRIMITIVE  LAW 

PART   ONE 

GENERAL  LITERATURE 


Chapter  I 
THE   ILIAD   OF  HOMER  i 

BOOK    I 

How  Agamemnon  and  Achilles  fell  out  at  the  siege  of  Troy ;  and 
Achilles  withdrew  himself  from  battle,  and  won  from  Zeus  a  pledge  that 
his  wrong  should  be  avenged  on  Agamemnon  and  the  Achaians. 

He  4^  :(:  Hi  H<  H<  ^ 

But  he  sat  by  his  swift-faring  ships,  still  wroth,  even  the  heaven- 
sprung  son  of  Peleus,  Achilles,  fleet  of  foot ;  he  betook  him  neither 
to  the  assembly  that  is  the  hero's  glory,  neither  to  war,  but  con- 
sumed his  heart  in  tarrying  in  his  place,  and  yearned  for  the  war- 
cry  and  for  battle.  .  .  . 

BOOK    II 

How  Zeus  beguiled  Agamemnon  by  a  dream ;  and  of  the  assembly  of 
the  Achaians  and  their  marching  forth  to  battle.  And  of  the  names  and 
numbers  of  the  hosts  of  the  Achaians  and  the  Trojans. 


^  [From  the  (revised)  prose  translation  of  Andrew  Lang,  Walter  Leaf, 
and  Ernest  Myers  (London,  1911),  with  the  consent  of  Macmillan  and  Co., 
Limited,  publisher.  Books  I-IX  are  the  translation  of  Mr,  Leaf  ;  Books 
X-XVI,  of  Mr.  Lang  ;  and  Books  XVII-XXIV,  of  Mr.  Myers. 

Herodotus  fixes  the  time  of  Homer  at  a  period  not  more  than  400  years 
before  his  own,  or  about  850  b.c.  Modern  authorities  carry  Homer 
back  to  a  period  from  900  to  1100  b.c] 

3 


,4       •        ,•       '  GENERAL   LITERATURE  [Part  I. 

Now  went  the  goddess  Dawn  to  high  Olympus,  foreteUing  day- 
light to  Zeus  and  all  the  immortals ;  and  the  king  bade  the  clear- 
voiced  heralds  summon  to  the  assembly  the  flowing-haired 
Achaians.     So  did  those  summon,  and  these  gathered  with  speed. 

But  first  the  council  of  the  great-hearted  elders  met  beside  the 
ship  of  king  Nestor  the  Pylos-born.  .  .  . 


And  then  spake  among  them  knightly  Nestor  of  Gerenia :  "  Out 
on  it ;  in  very  truth  ye  hold  assembly  like  silly  boys  that  have  no 
care  for  deeds  of  war.  What  shall  come  of  our  covenants  and  our 
oaths?  .  .  .  But  do  thou,  my  king,  take  good  counsel  thyself, 
and  hearken  to  another  that  shall  give  it ;  the  word  that  I  speak, 
whate'er  it  be,  shall  not  be  cast  away.  Separate  thy  warriors  by 
tribes  and  by  clans,  Agamemnon,  that  clan  may  give  aid  to  clan 
and  tribe  to  tribe.  If  thou  do  thus  and  the  Achaians  hearken  to 
thee,  then  wilt  thou  know  who  among  thy  captains  and  who  of 
the  .common  sort  is  a  coward,  and  who  too  is  brave ;  for  they  will 
fight  each  after  their  sort.  ..." 

And  lord  Agamemnon  answered  and  said  to  him :  "  Verily 
hast  thou  again  outdone  the  sons  of  the  Achaians  in  speech,  old 
man.  Ah,  father  Zeus  and  Athene  and  Apollo,  would  that  among 
the  Achaians  I  had  ten  such  councillors ;  then  would  the  city  of 
king  Priam  soon  bow  beneath  our  hands,  captive  and  wasted. 
But  segis-bearing  Zeus,  the  son  of  Kronos,  hath  brought  sorrows 
upon  me,  in  that  he  casteth  my  lot  amid  fruitless  wranglings  and 
strifes.  For  in  truth  I  and  Achilles  fought  about  a  damsel  with 
violent  words,  and  I  was  first  to  be  angry ;  but  if  we  can  only  be 
at  one  in  council,  then  will  there  no  more  be  any  putting  off  the 
day  of  evil  for  the  Trojans,  no  not  for  an  instant.  But  now  go 
ye  to  your  meal  that  we  may  join  battle.  Let  each  man  sharpen 
well  his  spear  and  bestow  well  his  shield,  and  let  him  well  give  his 
fleet-footed  steeds  their  meal,  and  look  well  to  his  chariot  on  every 
side  and  take  thought  for  battle,  that  all  day  long  we  may  contend 
in  hateful  war.  For  of  respite  shall  there  intervene  no,  not  a  whit, 
only  that  the  coming  of  night  shall  part  the  fury  of  warriors.  On 
each  man's  breast  shall  the  baldrick  of  his  covering  shield  be  wet 
with  sweat,  and  his  hand  shall  grow  faint  about  the  spear,  and 
each  man's  horse  shall  sweat  as  he  draweth  the  polished  chariot. 
And  whomsoever  I  perceive  minded  to  tarry  far  from  the  fight 
beside  the  beaked  ships,  for  him  shall  there  be  no  hope  hereafter 
to  escape  the  dogs  and  birds  of  prey."  .  .  . 


Chap.  I.]  THE   ILIAD   OF   HOMER  5 

And  they  stood  up  and  scattered  in  haste  throughout  the  ships, 
and  made  fires  in  the  huts  and  took  their  meal.  And  they  did 
sacrifice  each  man  to  one  of  the  everlasting  gods,  praying  for  escape 
from  death  and  the  tumult  of  battle.  And  Agamemnon  king  of 
men  slew  a  fat  bull  of  five  years  to  most  mighty  Kronion,  and  called 
the  elders,  the  princes  of  the  Achaian  host,  Nestor  first  and  king 
Idomeneus,  and  then  the  two  Aiantes  and  Tydeus'  son,  and  sixthly 
Odysseus  peer  of  Zeus  in  counsel.  And  Menelaos  of  the  loud 
war-cry  came  to  him  unbidden,  for  he  knew  in  his  heart  how  his 
brother  toiled.  Then  stood  they  around  the  bull  and  took  the 
barley-meal.  And  Agamemnon  made  his  prayer  in  their  midst 
and  said  :  "Zeus,  most  glorious,  most  great,  god  of  the  storm-cloud, 
that  dwellest  in  the  heaven,  vouchsafe  that  the  sun  set  not  upon  us 
nor  the  darkness  come  near,  till  I  have  laid  low  upon  the  earth 
Priam's  palace  smirched  with  smoke,  and  burnt  the  door-ways 
thereof  with  consuming  fire,  and  rent  on  Hector's  breast  his 
doublet  cleft  with  the  blade ;  and  about  him  may  full  many  of  his 
comrades  prone  in  the  dust  bite  the  earth." 

So  spake  he,  but  not  as  yet  would  Kronion  grant  him  fulfilment ; 
he  accepted  the  sacrifice,  but  made  toil  to  wax  unceasingly. 

Now  when  they  had  prayed  and  sprinkled  the  barley-meal  they 
first  drew  back  the  bull's  head  and  cut  his  throat  and  flayed  him, 
and  cut  slices  from  the  thighs  and  wrapped  them  in  fat,  making  a 
double  fold,  and  laid  raw  collops  thereon.  And  these  they  burnt 
on  cleft  wood  stript  of  leaves,  and  spitted  the  vitals  and  held  them 
over  Hephaistos'  flame.  Now  when  the  thighs  were  burnt  and 
they  had  tasted  the  vitals,  then  sliced  they  all  the  rest  and  pierced 
it  through  with  spits,  and  roasted  it  carefully  and  drew  all  off  again. 
So  when  they  had  rest  from  the  task  and  had  made  ready  the  ban- 
quet, they  feasted,  nor  was  their  heart  aught  stinted  of  the  fair 
banquet.  But  when  they  had  put  away  from  them  the  desire  of 
meat  and  drink,  then  did  knightly  Nestor  of  Gerenia  open  his  say- 
ing to  them:  **Most  noble  son  of  Atreus,  Agamemnon  king  of 
men,  let  us  not  any  more  hold  long  converse  here,  nor  for  long 
delay  the  work  that  god  putteth  in  our  hands ;  but  come,  let  the 
heralds  of  the  mail-clad  Achaians  make  proclamation  to  the  folk 
and  gather  them  throughout  the  ships ;  and  let  us  go  thus  in  con- 
cert through  the  wide  host  of  the  Achaians,  that  the  speedier  we 
may  arouse  keen  war." 

So  spake  he  and  Agamemnon  king  of  men  disregarded  not. 
Straightway  he  bade  the  clear-voiced  heralds  summon  to  battle 
the   flowing-haired   Achaians.     So   those   summoned    and   these 


6  GENERAL   LITERATURE  [Part  I. 

gathered  with  all  speed.  And  the  kings,  the  fosterlings  of  Zeus 
that  were  about  Atreus'  son,  eagerly  marshalled  them,  and  bright- 
eyed  Athene  in  the  midst,  bearing  the  holy  aegis  that  knoweth 
neither  age  nor  death,  whereon  wave  an  hundred  tassels  of  pure 
gold,  all  deftly  woven  and  each  one  an  hundred  oxen  worth. 
Therewith  she  passed  dazzling  through  the  Achaian  folk,  urging 
them  forth ;  and  in  every  man's  heart  she  roused  strength  to  battle 
without  ceasing  and  to  fight.  So  was  war  made  sweeter  to  them 
than  to  depart  in  their  hollow  ships  to  their  dear  native  land. 
Even  as  ravaging  fire  kindleth  a  boundless  forest  on  a  mountain's 
peaks,  and  the  blaze  is  seen  from  afar,  even  so  as  they  marched 
went  the  dazzling  gleam  from  the  innumerable  bronze  through 
the  sky  even  unto  the  heavens. 

And  as  the  many  tribes  of  feathered  birds,  wild  geese,  or  cranes 
or  long-necked  swans,  on  the  Asian  mead  by  Kaystrios'  stream, 
fly  hither  and  thither  joying  in  their  plumage,  and  with  loud  cries 
settle  ever  onwards,  and  the  mead  resounds ;  even  so  poured  forth 
the  many  tribes  of  warriors  from  ships  and  huts  into  the  Skaman- 
drian  plain.  And  the  earth  echoed  terribly  beneath  the  tread  of 
men  and  horses.  So  stood  they  in  the  flowery  Skamandrian  plain, 
unnumbered  as  are  leaves  and  flowers  in  their  season.  Even  as 
the  many  tribes  of  thick  flies  that  hover  about  a  herdsman's 
steading  in  the  spring  season,  when  milk  drencheth  the  pails,  even 
in  like  number  stood  the  flowing-haired  Achaians  upon  the  plain 
in  face  of  the  Trojans,  eager  to  rend  them  asunder.  And  even  as 
the  goatherds  easily  divide  the  ranging  flocks  of  goats  when  they 
mingle  in  the  pasture,  so  did  their  captains  marshal  them  on  this 
side  and  on  that,  to  enter  into  the  fray,  and  in  their  midst  lord 
Agamemnon,  his  head  and  eyes  like  unto  Zeus  whose  joy  is  in  the 
thunder,  and  his  waist  like  unto  Ares  and  his  breast  unto  Poseidon. 
Even  as  a  bull  standeth  out  far  foremost  amid  the  herd,  for  he  is 
pre-eminent  amid  the  pasturing  kinej  even  such  did  Zeus  make 
Atreides  on  that  day,  pre-eminent  among  many  and  chief  amid 
heroes. 


BOOK  III 

How  Menelaos  and  Paris  fought  in  single  combat ;  and  Aphrodite 
rescued  Paris.  And  how  Helen  and  Priam  beheld  the  Achaian  host  from 
the  walls  of  Troy. 


Chap.  I.]  THE   ILIAD    OF   HOMER 


BOOK   IV 


How  Pandaros  wounded  Menelaos  by   treachery;  and  Agamemnon 
exhorted  his  chief  captains  to  battle. 


BOOK  V' 


How  Diomedes  by  his  great  valor  made  havoc  of  the  Trojans,  and 
wounded  even  Aphrodite  and  Ares  by  the  help  of  Athene. 


BOOK    VI 

How  Diomedes  and  Glaukos  being  about  to  fight,  were  known  to  each 
other,  and  parted  in  friendliness.  And  how  Hector  returning  to  the  city 
bade  farewell  to  Andromache  his  wife. 


So  said  he  [Glaukos],  and  Diomedes  of  the  loud  war-cry  was  glad. 
He  planted  his  spear  in  the  bounteous  earth  and  with  soft  words 
spake  to  the  shepherd  of  the  host :  "  Surely  then  thou  art  to  me  a 
guest-friend  of  old  times  through  my  father :  for  goodly  Oineus 
of  yore  entertained  noble  Bellerophon  in  his  halls  and  kept  him 
twenty  days.  Moreover  they  gave  each  the  other  goodly  gifts  of 
friendship  ;  Oineus  gave  a  belt  bright  with  purple,  and  Bellerophon 
a  gold  twy-handled  cup,  the  which  when  I  came  I  left  in  my 
palace.  But  of  Tydeus  I  remember  naught,  seeing  I  was  yet  little 
when  he  left  me,  what  time  the  Achaian  host  perished  at  Thebes. 
Therefore  now  am  I  to  thee  a  dear  guest-friend  in  midmost  Argos, 
and  thou  in  Lykia,  whene'er  I  fare  to  your  land.  So  let  us  shun 
each  other's  spears,  even  amid  the  throng;  Trojans  are  there  in 
multitudes  and  famous  allies  for.  me  to  slay,  whoe'er  it  be  that 
God  vouchsafeth  me  and  my  feet  overtake;  and  for  thee  are 
there  Achaians  in  multitude,  to  slay  whome'er  thou  canst.  But 
let  us  make  exchange  of  arms  between  us,  that  these  also  may 
know  how  we  avow  ourselves  to  be  guest-friends  by  lineage." 

So  spake  the  twain,  and  leaping  from  their  cars  clasped  each 
the  other  by  his  hand,  and  pledged  their  faith.  But  now  Zeus  son 
of  Kronos  took  from  Glaukos  his  wits,  in  that  he  made  exchange 
with  Diomedes  Tydeus'  son  of  golden  armour  for  bronze,  the  price 
of  five  score  oxen  for  the  price  of  nine. 

Now  when  Hector  came  to  the  Skaian  gates  and  to  the  oak-tree, 
there  came  running  round  about  him  the  Trojans'  wives  and 
daughters,  enquiring  of  sons  and  brethren  and  friends  and  husbands. 
But  he  bade  them  thereat  all  in  turn  pray  to  the  gbds ;  but  sorrow 
hung  over  many. 


S  GENERAL   LITERATURE  .  [Part  I. 

But  when  he  came  to  Priam's  beautiful  palace,  adorned  with 
polished  colonnades  —  and  in  it  were  fifty  chambers  of  polished 
stone,  builded  hard  by  one  another,  wherein  Priam's  sons  slept 
beside  their  wedded  wives;  and  for  his  daughters  over  against 
them  on  the  other  side  within  the  courtyard  were  twelve  roofed 
chambers  of  polished  stone  builded  hard  by  one  another,  wherein 
slept  Priam's  sons-in-law  beside  their  chaste  wives  —  then  came 
there  to  meet  him  his  bountiful  mother,  leading  with  her  Laodike, 
fairest  of  her  daughters  to  look  on  ;  and  she  clasped  her  hand  in  his, 
and  spake,  and  called  upon  his  name:  ''My  son,  why  hast  thou 
Jeft  violent  battle  to  come  hither  ?  Surely  the  sons  of  the  Achaians 
—  name  of  evil !  —  press  thee  hard  in  fight  about  thy  city,  and  so 
thy  spirit  hath  brought  thee  hither,  to  come  and  stretch  forth  thy 
hands  to  Zeus  from  the  citadel.  But  tarry  till  I  bring  thee  honey- 
sweet  wine,  that  thou  mayest  pour  libation  to  Zeus  and  all  the 
immortals  first,  and  then  shalt  thou  thyself  also  be  refreshed  if  thou 
wilt  drink.  ..." 

BOOK   VII 

Of  the  single  combat  between  Aias  and  Hector,  and  of  the  burying  of  the 
dead,  and  the  building  of  a  wall  about  the  Achaian  ships. 


Such  converse  held  these  one  with  the  other,  and  the  sun  went 
down,  and  the  work  of  the  Achaians  was  accomplished ;  and  they 
slaughtered  oxen  amid  the  huts,  and  took  supper.  And  many 
ships  from  Lemnos,  bearing  wine,  were  at  hand,  sent  of  Jason's 
son  Euneos,  whom  Hypsipyle  bare  to  Jason  shepherd  of  the  host. 
And  specially  for  Atreus'  sons,  Agamemnon  and  Menelaos,  Jason's 
son  gave  a  freight  of  wine,  even  a  thousand  measures.  So  the 
flowing-haired  Achaians  bought  them  wine  thence,  some  for 
bronze  and  some  for  gleaming  iron,  and  some  with  hides  and  some 
with  whole  kine,  and  some  with  captives ;  ^  and  they  set  a  rich 
feast  before  them.  Then  all  night  long  feasted  the  flowing-haired 
Achaians,  and  in  the  city  the  Trojans  and  allies ;  and  all  night 
long  Zeus  the  lord  of  counsel  devised  them  ill  with  terrible  thunder- 
ings.  Then  pale  fear  gat  hold  upon  them,  and  they  spilt  wine 
from  their  cups  upon  the  earth,  neither  durst  any  drink  till  he  had 
made  libation  to  most  mighty  Kronion.  Then  laid  they  them  to 
rest  and  took  the  boon  of  sleep. 

1  [According  to  Theophilus,  the  earljest  literary  monument  of  barter. 
—  Eds.1 


Chap.  I.]  THE   ILIAD    OF   HOMER  9 


BOOK  VIII 

How  Zeus  bethought  him  of  his  promise  to  avenge  Achilles'  wrong  on 
Agamemnon;  and  therefore  bade  the  gods  refrain  from  war,  and  gave 
victory  to  the  Trojans. 


BOOK  IX 

How  Agamemnon  sent  an  embassage  to  Achilles,  beseeching  him  to  be 
appeased ;  and  how  Achilles  denied  him. 


But  Atreides  was  stricken  to  the  heart  with  sore  grief,  and  went 
■about  bidding  the  clear-voiced  heralds  summon  every  man  by 
name  to  the  assembly,  but  not  to  shout  aloud;  and  himself  he 
toiled  amid  the  foremost.  So  they  sat  sorrowful  in  assembly,  and 
Agamemnon  stood  up  weeping  like  unto  a  fountain  of  dark  water 
that  from  a  beetling  cliff  poureth  down  its  black  stream ;  even  so 
with  deep  groaning  he  spake  amid  the  Argives  and  said :  "My 
friends,  leaders  and  captains  of  the  Argives,  Zeus  son  of  Kronos 
hath  bound  me  with  might  in  grievous  blindness  of  soul ;  hard  of 
heart  is  he,  for  that  erewhile  he  promised  and  gave  his  pledge  that 
not  till  I  had  laid  waste  well-walled  Ilios  should  I  depart,  but  now 
hath  planned  a  cruel  wile,  and  biddeth  me  return  in  dishonour  to 
Argos  with  the  loss  of  many  of  my  folk.  Such  meseemeth  is  the 
good  pleasure  of  most  mighty  Zeus,  that  hath  laid  low  the  heads  of 
many  cities,  yea  and  shall  lay  low ;  for  his  is  highest  power.  So 
come,  even  as  I  shall  bid,  let  us  all  obey ;  let  us  flee  with  our  ships 
to  our  dear  native  land,  for  now  shall  we  never  take  wide-wayed 
Troy." 

So  said  he,  and  they  all  held  their  peace  and  kept  silence.  Long 
time  were  the  sons  of  the  Achaians  voiceless  for  grief,  but  at  the  last 
Diomedes  of  the  loud  war-cry  spake  amid  them  and  said  :  ^'  Atreides, 
with  thee  first  in  thy  folly  will  I  contend,  where  it  is  just,  O  king, 
even  in  the  assembly ;  be  not  thou  wroth  therefore.  My  valour 
didst  thou  blame  in  chief  amid  the  Danaans,  and  saidst  that  I  was 
no  man  of  war  but  a  coward ;  and  all  this  know  the  Argives  both 
young  and  old.  But  the  son  of  crooked-counselling  Kronos  hath 
endowed  thee  but  by  halves ;  he  granted  thee  to  have  the  honour 
of  the  sceptre  above  all  men,  but  valour  he  gave  thee  not,  wherein 
is  highest  power.  Sir,  deemest  thou  that  the  sons  of  the  Achaians 
are  thus  indeed  cowards  and  weaklings  as  thou  sayest  ?  But  and  if 
thine  own  heart  be  set  on  departing,  go  thy  way ;  the  way  is  before 


10  GENERAL   LITERATURE  [Part  I. 

thee,  and  thy  ships  stand  beside  the  sea,  even  the  great  multitude 
that  followed  thee  from  Mykene.  But  all  the  other  flowing-haired 
Achaians  will  tarry  here  until  we  lay  waste  Troy.  Nay,  let  them 
too  flee  on  their  ships  to  their  dear  native  land ;  yet  will  we  twain, 
even  I  and  Sthenelos,  fight  till  we  attain  the  goal  of  Ilios ;  for  in 
God's  name  are  we  come." 

So  said  he,  and  all  the  sons  of  the  Achaians  shouted  aloud, 
applauding  the  saying  of  horse-taming  Diomedes.  Then  knightly 
Nestor  arose  and  said  amid  them :  "Tydeides,  in  battle  art  thou 
passing  mighty,  and  in  council  art  thou  best  among  thine  equals  in 
years ;  none  of  all  the  Achaians  will  make  light  of  thy  word  nor 
gainsay  it ;  but  thou  hast  not  made  a  full  end  of  thy  words.  More- 
over thou  art  a  young  man  indeed,  and  mightest  even  be  my  son, 
my  youngest-born ;  yet  thou  counsellest  prudently  the  princes  of 
the  Achaians,  because  thou  speakest  according  unto  right.  But 
lo,  I  that  avow  me  to  be  older  than  thou  will  speak  forth  and 
expound  everything;  neither  shall  any  man  despise  my  saying, 
not  even  the  lord  Agamemnon.  A  tribeless,  lawless,  homeless  man 
is  he  that  loveth  bitter  civil  strife.  Howbeit  now  let  us  yield  to 
black  night  and  make  ready  our  meal ;  and  let  the  sentinels  be- 
stow them  severally  along  the  deep-delved  foss  without  the  wall. 
This  charge  give  I  to  the  young  men;  and  thou,  Atreides,  lead 
them  the  way,  for  thou  art  the  most  royal.  Spread  thou  a  feast 
for  the  councillors ;  that  is  thy  place  and  seemly  for  thee.  Thy 
huts  are  full  of  wine  that  the  ships  of  the  Achaians  bring  thee  by 
day  from  Thrace  across  the  wide  sea ;  all  entertainment  is  for  thee, 
being  king  over  many.  In  the  gathering  of  many  shalt  thou  listen 
to  him  that  deviseth  the  most  excellent  counsel ;  sore  need  have  all 
the  Achaians  of  such  as  is  good  and  prudent,  because  hard  by  the 
ships  our  foemen  are  burning  their  watch-fires  in  multitude ;  what 
man  can  rejoice  thereat  ?  This  night  shall  either  destroy  or  save 
the  host." 

So  said  he,  and  they  gladly  hearkened  to  him  and  obeyed.  Forth 
sallied  the  sentinels  in  their  harness,  around  Thrasymedes  Nes- 
tor's son,  shepherd  of  the  host,  and  Askalaphos  and  lalmenos  sons 
of  Ares,  and  Meriones  and  Aphareus  and  Deipyros  and  Kreion's 
son  noble  Lykomedes.  Seven  were  the  captains  of  the  sentinels, 
and  with  each  went  fivescore  young  men  bearing  their  long  spears 
in  their  hands ;  and  they  took  post  midway  betwixt  foss  and  wall, 
and  kindled  a  fire  and  made  ready  each  man  his  meal. 

Then  Atreides  gathered  the  councillors  of  the  Achaians,  and 
led  them  to  his  hut,  and  spread  before  them  an  abundant  feast. 


Chap.  I.]  THE   ILIAD   OF   HOMER  11 

So  they  put  forth  their  hands  to  the  good  cheer  that  lay  before  them. 
And  when  they  had  put  away  from  them  the  desire  of  meat  and 
drink,  then  the  old  man  first  began  to  weave  his  counsel,  even 
Nestor,  whose  rede  of  old  time  was  approved  the  best.  He  of  good 
intent  spake  to  them  and  said :  "Most  noble  son  of  Atreus,  Aga- 
memnon king  of  men,  in  thy  name  will  I  end  and  with  thy  name 
begin,  because  thou  art  king  over  many  hosts,  and  to  thy  hand 
Zeus  hath  entrusted  sceptre  and  law,  that  thou  mayest  take 
counsel  for  thy  folk.  Thee  therefore  more  than  any  it  behoveth 
both  to  speak  and  hearken,  and  to  accomplish  what  another  than 
thou  may  say,  when  his  heart  biddeth  him  speak  for  profit :  where- 
soever thou  leadest  all  shall  turn  on  thee,  so  I  will  speak  as  me- 
seemeth  best.  No  other  man  shall  have  a  more  excellent  thought 
than  this  that  I  bear  in  mind  from  old  time  even  until  now,  since 
the  day  when  thou,  O  heaven-sprung  king,  didst  go  and  take  the 
damsel  Briseis  from  angry  Achilles'  hut  by  no  consent  of  ours. 
Nay,  I  right  heartily  dissuaded  thee ;  but  thou  yieldedst  to  thy 
proud  spirit,  and  dishonouredst  a  man  of  valour  whom  even  the 
immortals  honoured ;  for  thou  didst  take  and  keepest  from  him 
his  meed  of  valour.  Still  let  us  even  now  take  thought  how  we 
may  appease  him  and  persuade  him  with  gifts  of  friendship  and 
kindly  words." 

And  Agamemnon  king  of  men  answered  and  said  to  him :  "Old 
sir,  in  no  false  wise  hast  thou  accused  my  folly.  Fool  was  I,  I 
myself  deny  it  not.  Worth  many  hosts  is  he  whom  Zeus  loveth  in 
his  heart,  even  as  now  he  honoureth  this  man  and  destroyeth  the 
host  of  the  Achaians.  But  seeing  I  was  a  fool  in  that  I  yielded  to 
my  sorry  passion,  I  will  make  amends  and  give  a  recompense 
beyond  telling.  In  the  midst  of  you  all  I  will  name  the  excellent 
gifts ;  seven  tripods  untouched  of  fire,  and  ten  talents  of  gold  and 
twenty  gleaming  caldrons,  and  twelve  stalwart  horses,  winners  in 
the  race,  that  have  taken  prizes  by  their  speed.  No  lackwealth 
were  that  man,  neither  endowered  of  precious  gold,  whose  sub- 
stance were  as  great  as  the  prizes  my  whole-hooved  steeds  have 
borne  me  off.  And  seven  women  will  I  give,  skilled  in  excellent 
handiwork,  Lesbians  whom  I  chose  me  from  the  spoils  the  day  that 
he  himself  took  stablished  Lesbos,  surpassing  womankind  in  beauty. 
These  will  I  give  him,  and  with  them  shall  be  she  whom  erst  I  took 
from  him,  even  the  daughter  of  Briseus.  .  .  .  All  these  things 
shall  be  set  straightway  before  him;  and  if  hereafter  the  gods 
grant  us  to  lay  waste  the  great  city  of  Priam,  then  let  him  enter  in 
when  we  Achaians  be  dividing  the  spoil,  and  lade  his  ship  full  of 


12  GENERAL   LITERATURE  [Part  I. 

gold  and  bronze,  and  himself  choose  twenty  Trojan  women,  the 
fairest  that  there  be  after  Helen  of  Argos.  And  if  we  win  to  the 
richest  of  lands,  even  Achaian  Argos,  he  shall  be  my  son  and  I  will 
hold  him  in  like  honour  with  Orestes,  my  stripling  boy  that  is 
nurtured  in  all  abundance.  Three  daughters  are  mine  in  my  well- 
builded  hall,  Chrysothemis  and  Laodike  and  Iphianassa ;  let  him 
take  of  them  which  he  will,  without  gifts  of  wooing,  to  Peleus' 
house ;  and  I  will  add  a  great  dower  such  as  no  man  ever  yet  gave 
with  his  daughter.  And  seven  well-peopled  cities  will  I  give  him, 
Kardamyle  and  Enope  and  grassy  Hire  and  holy  Pherai  and 
Antheia  deep  in  meads,  and  fair  Aipeia  and  Pedasos  land  of  vines. 
And  all  are  nigh  to  the  salt  sea,  on  the  uttermost  border  of  sandy 
Pylos ;  therein  dwell  men  abounding  in  flocks  and  kine,  men  that 
shall  worship  him  like  a  god  with  gifts,  and  beneath  his  sway  ful- 
fil his  prosperous  ordinances.  All  this  will  I  accomplish  so  he  but 
cease  from  wrath.  Let  him  yield ;  Hades  I  ween  is  not  to  be 
softened  neither  overcome,  and  therefore  is  he  hatefullest  of 
all  gods  to  mortals.  Yea,  let  him  be  ruled  by  me,  inasmuch  as  I 
am  more  royal  and  avow  me  to  be  the  elder  in  years.'* 

Then  knightly  Nestor  of  Gerenia  answered  and  said:  "Most 
noble  son  of  Atreus,  Agamemnon  king  of  men,  now  are  these  gifts 
not  lightly  to  be  esteemed  that  thou  offerest  king  Achilles.  Come 
therefore,  let  us  speed  forth  picked  men  to  go  with  all  haste  to 
the  hut  of  Peleus'  son  Achilles.  Lo  now,  whomsoever  I  appoint 
let  them  consent.  First  let  Phoinix  dear  to  Zeus  lead  the  way, 
and  after  him  great  Aias  and  noble  Odysseus;  and  for  heralds 
let  Odios  and  Eurybates  be  their  companions.  And  now  bring 
water  for  our  hands,  and  bid  keep  holy  silence,  that  we  may  pray 
unto  Zeus  the  son  of  Kronos,  if  perchance  he  will  have  mercy 
upon  us." 

So  said  he,  and  spake  words  that  were  well  pleasing  unto  all. 
Forthwith  the  heralds  poured  water  on  their  hands,  and  the 
young  men  crowned  the  bowls  with  drink  and  gave  each  man  his 
portion  after  they  had  poured  the  libation  in  the  cups.  And 
when  they  had  made  libation  and  drunk  as  their  heart  desired, 
they  issued  forth  from  the  hut  of  Agamemnon  son  of  Atreus. 
And  knightly  Nestor  of  Gerenia  gave  them  full  charge,  with 
many  a  glance  to  each,  and  chiefest  to  Odysseus,  how  they  should 
essay  to  prevail  on  Peleus'  noble  son. 

So  the  twain  went  along  the  shore  of  the  loud-sounding  sea, 
making  instant  prayer  to  the  earth-embracer,  the  Shaker  of  the 
Earth,  that  they  might  with  ease  prevail  on  Aiakides'  great  heart. 


Chap.  I.]  THE   ILIAD   OF   HOMER  13 

So  they  came  to  the  huts  and  ships  of  the  Myrmidons,  and  found 
their  king  taking  his  pleasure  of  a  loud  lyre,  fair,  of  curious  work, 
with  a  silver  cross-bar  upon  it ;  one  that  he  had  taken  from  the 
spoils  when  he  laid  Eetion's  city  waste.  Therein  he  was  delight- 
ing his  soul,  and  singing  the  glories  of  heroes.  And  over  against 
him  sate  Patroklos  alone  in  silence,  watching  till  Aiakides  should 
cease  from  singing.  So  the  twain  came  forward,  and  noble 
Odysseus  led  the  way,  and  they  stood  before  his  face ;  and  Achilles 
sprang  up  amazed  with  the  lyre  in  his  hand,  and  left  the  seat  where 
he  was  sitting,  and  in  like  manner  Patroklos  when  he  beheld  the 
men  arose.  Then  Achilles  fleet  of  foot  greeted  them  and  said : 
*' Welcome;  verily  ye  are  friends  that  are  come  —  sore  indeed  is 
the  need  —  even  ye  that  are  dearest  of  the  Achaians  to  me  even 
in  my  wrath." 

So  spake  noble  Achilles  and  led  them  forward,  and  made  them 
sit  on  settles  and  carpets  of  purple ;  and  anon  he  spake  to  Patro- 
klos being  near:  ''Bring  forth  a  greater  bowl,  thou  son  of  Menoi- 
tios ;  mingle  stronger  drink,  and  prepare  each  man  a  cup,  for 
dearest  of  men  are  these  that  are  under  my  roof." 

So  said  he,  and  Patroklos  hearkened  to  his  dear  comrade.  He 
cast  down  a  great  fleshing-block  in  the  fire-light,  and  laid  thereon 
a  sheep's  back  and  a  fat  goat's,  and  a  great  hog's  chine  rich  with 
fat.  And  Automedon  held  them  for  him,  while  Achilles  carved. 
Then  he  sliced  well  the  meat  and  pierced  it  through  with  spits, 
and  Menoitios'  son,  that  godlike  hero,  made  the  fire  burn  high. 
Then  when  the  fire  was  burned  down  and  the  flame  waned,  he 
scattered  the  embers  and  laid  the  spits  thereover,  resting  them 
on  the  spit-racks,  when  he  had  sprinkled  them  with  holy  salt. 
Then  when  he  had  roasted  the  meat  and  apportioned  it  in  the 
platters,  Patroklos  took  bread  and  dealt  it  forth  on  the  table  in 
fair  baskets,  and  Achilles  dealt  the  meat.  And  he  sate  him  over 
against  godlike  Odysseus  by  the  other  wall,  and  bade  his  com- 
rade Patroklos  do  sacrifice  to  the  gods ;  so  he  cast  the  first-fruits 
into  the  fire.  Then  put  they  forth  their  hands  to  the  good  cheer 
lying  before  them.  And  when  they  had  put  from  them  the 
desire  of  meat  and  drink,  Aias  nodded  to  Phoinix.  But  noble 
Odysseus  marked  it,  and  filled  a  cup  with  wine  and  pledged 
Achilles :  "  Hail,  O  Achilles !  The  fair  feast  lack  we  not  either 
in  the  hut  of  Agamemnon  son  of  Atreus  neither  now  in  thine; 
for  feasting  is  there  abundance  to  our  heart's  desire,  but  our 
thought  is  not  for  matters  of  the  delicious  feast ;  nay,  we  behold 
very  sore  destruction,  thou  fosterling  of  Zeus,  and  are  afraid. 


14  GENERAL   LITERATURE  [Part  I . 

Now  is  it  in  doubt  whether  we  save  the  benched  ships  or  behold 
them  perish,  if  thou  put  not  on  thy  might.  Nigh  unto  ships  and 
wall  have  the  high-hearted  Trojans  and  famed  allies  pitched  their 
camp,  and  kindled  many  fires  throughout  their  host,  and  ween 
that  they  shall  no  more  be  withheld  but  will  fall  on  our  black  ships. 
Agamemnon  offereth  thee  worthy  gifts,  so  thou  wilt  cease  from 
anger.  Lo  now,  hearken  thou  to  me,  and  I  will  tell  thee  all  the 
gifts  that  in  his  hut  Agamemnon  promised  thee.  ..." 

And  Achilles  fleet  of  foot  answered  and  said  unto  him : 
*'  Heaven-sprung  son  of  Laertes,  Odysseus  of  many  wiles,  in  open- 
ness must  I  now  declare  unto  you  my  saying,  even  as  I  am  minded 
and  as  the  fulfilment  thereof  shall  be,  that  ye  may  not  sit  before 
me  and  coax  this  way  and  that.  .  .  .  Twelve  cities  of  men  have  I 
laid  waste  from  ship-board,  and  from  land  eleven,  I  do  you  to  wit, 
throughout  deep-soiled  Troy-land ;  out  of  all  these  took  I  many 
goodly  treasures  and  would  bring  and  give  them  all  to  Agamemnon 
son  of  Atreus,  and  he  staying  behind  amid  the  fleet  ships  would 
take  them  and  portion  out  some  few  but  keep  the  most.  Now 
some  he  gave  to  be  meeds  of  honour  to  the  princes  and  the  kings, 
and  theirs  are  left  untouched;  .  .  .  But  now  that  he  hath 
taken  my  meed  of  honour  from  mine  arms  and  hath  deceived 
me,  let  him  not  tempt  me  that  know  him  full  well ;  he  shall  not 
prevail.  Nay,  Odysseus,  let  him  take  counsel  with  thee  and  all 
the  princes  to  ward  from  the  ships  the  consuming  fire.  Verily 
without  mine  aid  he  hath  wrought  many  things,  and  built  a 
wall  and  dug  a  foss  about  it  wide  and  deep  and  set  a  palisade 
therein;  yet  even  so  can  he  not  stay  murderous  Hector's  might. 
I  will  to-morrow  do  sacrifice  to  Zeus  and  all  the  gods,  and  store 
well  my  ships  when  I  have  launched  them  on  the  salt  sea  —  then 
shalt  thou  see,  if  thou  wilt  and  hast  any  care  therefor,  my  ships 
sailing  at  break  of  day  over  Hellespont,  the  fishes'  home,  and  my 
men  right  eager  at  the  oar ;  and  if  the  great  Shaker  of  the  Earth 
grant  me  good  journey,  on  the  third  day  should  I  reach  deep- 
soiled  Phthia.  There  are  my  great  possessions  that  I  left  when 
I  came  hither  to  my  hurt ;  and  yet  more  gold  and  ruddy  bronze 
shall  I  bring  from  hence,  and  fair-girdled  women  and  grey  iron, 
all  at  least  that  were  mine  by  lot ;  only  my  meed  of  honour  hath 
he  that  gave  it  me  taken  back  in  his  despitefulness,  even  lord 
Agamemnon  son  of  Atreus.  To  him  declare  ye  everything  even 
as  I  charge  you,  openly,  that  all  the  Achaians  likewise  many  have 
indignation,  if  haply  he  hopeth  to  beguile  yet  some  other  Danaan, 
for  that  he  is  ever  clothed  in  shamelessness.     And  the  daughter 


Chap.  I.]  THE   ILIAD   OF   HOMER  15 

of  Agamemnon  son  of  Atreus  will  I  not  wed,  not  were  she  rival 
of  golden  Aphrodite  for  fairness  and  for  handiwork  matched 
bright-eyed  Athene  —  not  even  then  will  I  wed  her ;  let  him  choose 
him  of  the  Achaians  another  that  is  his  peer  and  is  more  royal 
than  I.  For  if  the  gods  indeed  preserve  me  and  I  come  unto  my 
home,  then  will  Peleus  himself  seek  me  a  wife.  Many  Achaian 
maidens  are  there  throughout  Hellas  and  Phthia,  daughters  of 
princes  that  ward  their  cities;  whomsoever  of  these  I  wish  will 
I  make  my  dear  lady.  Very  often  was  my  high  soul  moved  to 
take  me  there  a  wedded  wife,  a  helpmeet  for  me,  and  have  joy 
of  the  possessions  that  the  old  man  Peleus  possesseth.  For  not 
of  like  worth  with  life  hold  I  even  all  the  wealth  that  men  say 
was  possessed  of  the  well-peopled  city  of  Ilios  in  days  of  peace 
gone  by,  before  the  sons  of  the  Achaians  came;  neither  all  the 
treasure  that  the  stone  threshold  of  the  archer  Phoebus  Apollo 
encompasseth  in  rocky  Pytho.  For  kine  and  goodly  flocks  are 
to  be  had  for  the  harrying,  and  tripods  and  chestnut  horses  for 
the  purchasing ;  but  to  bring  back  man's  life  neither  harrying  nor 
earning  availeth  when  once  it  hath  passed  the  barrier  of  his  lips. 
For  thus  my  goddess  mother  telleth  me,  Thetis  the  silver-footed, 
that  twain  fates  are  bearing  me  to  the  issue  of  death.  If  I  abide 
here  and  besiege  the  Trojans'  city,  then  my  returning  home  is 
taken  from  me,  but  my  fame  shall  be  imperishable;  but  if  I  go 
home  to  my  dear  native  land,  my  high  fame  is  taken  from  me, 
but  my  life  shall  endure  long  while,  neither  shall  the  issue  of  death 
soon  reach  me.  Moreover  I  would  counsel  you  all  to  set  sail 
homeward,  seeing  ye  shall  never  reach  your  goal  of  steep  Ilios; 
of  a  surety  far-seeing  Zeus  holdeth  his  hand  over  her  and  her  folk 
are  of  good  courage.  So  go  your  way  and  tell  my  answer  to  the 
princes  of  the  Achaians,  even  as  is  the  office  of  elders,  that  they 
may  devise  in  their  hearts  some  other  better  counsel,  such  as 
shall  save  them  their  ships  and  the  host  of  the  Achaians  amid 
the  hollow  ships :  since  this  counsel  availeth  them  naught  that 
they  have  now  devised,  by  reason  of  my  fierce  wrath.  But  let 
Phoinix  now  abide  with  us  and  lay  him  to  rest,  that  he  may 
follow  with  me  on  my  ships  to  our  dear  native  land  to-morrow, 
if  he  will ;  for  I  will  not  take  him  perforce." 

So  spake  he,  and  they  all  held  their  peace  and  were  still,  and 
marvelled  at  his  saying;  for  he  denied  them  very  vehemently. 
But  at  the  last  spake  to  them  the  old  knight  Phoinix,  bursting 
into  tears,  because  he  was  sore  afraid  for  the  ships  of  the  Achaians : 
*'  If  indeed  thou  ponderest  departure  in  thy  heart,  glorious  Achilles, 


16  GENERAL   LITERATURE  [Part  I, 

and  hast  no  mind  at  all  to  save  the  fleet  ships  from  consuming 
fire,  because  that  wrath  hath  entered  into  thy  heart;  how  can 
I  be  left  of  thee,  dear  son,  alone  thereafter  ?  To  thee  did  the  old 
knight  Peleus  send  me  the  day  he  sent  thee  to  Agamemnon  forth 
from  Phthia,  a  stripling  yet  unskilled  in  equal  war  and  in  debate 
wherein  men  wax  pre-eminent.  Therefore  sent  he  me  to  teach 
thee  all  these  things,  to  be  both  a  speaker  of  words  and  a  doer  of 
deeds.  So  would  I  not  be  left  alone  of  thee,  dear  son,  not  even 
if  god  himself  should  take  on  him  to  strip  my  years  from  me,  and 
make  me  fresh  and  young  as  in  the  day  when  first  I  left  Hellas 
the  home  of  fair  women,  fleeing  from  strife  against  my  father 
Amyntor  son  of  Ormenos :  for  he  was  sore  angered  with  me  by 
reason  of  his  lovely-haired  concubine,  whom  he  ever  cherished,  and 
wronged  his  wife  my  mother.  So  she  besought  me  continually 
by  my  knees  to  go  in  first  unto  the  concubine,  that  the  old  man 
might  be  hateful  to  her.  I  hearkened  to  her  and  did  the  deed; 
but  my  sire  was  ware  thereof  forthwith  and  cursed  me  mightily, 
and  called  the  dire  Erinyes  to  look  that  never  should  any  dear  son 
sprung  of  my  body  sit  upon  my  knees :  and  the  gods  fulfilled  his 
curse,  even  Zeus  of  the  underworld  and  dread  Persephone.  [Then 
took  I  counsel  to  slay  him  with  the  keen  sword;  but  some  im- 
mortal stayed  mine  anger,  bringing  to  my  mind  the  people's  voice 
and  all  the  reproaches  of  men,  lest  I  should  be  called  a  father- 
slayer  amid  the  Achaians.]  Then  would  my  soul  no  more  be  re- 
frained at  all  within  my  breast  to  tarry  in  the  halls  of  mine  angered 
father.  Now  my  fellows  and  my  kinsmen  came  about  me  with 
many  prayers,  and  refrained  me  there  within  the  halls,  and 
slaughtered  many  goodly  sheep  and  shambling  kine  with  crooked 
horns ;  and  many  swine  rich  with  fat  were  stretched  to  singe  over 
the  flames  of  Hephaistos,  and  wine  from  that  old  man's  jars  was 
drunken  without  stint.  Nine  nights  long  slept  they  all  night 
around  my  body  ;  they  kept  watch  in  turn,  neither  were  the  fires 
quenched,  one  beneath  the  colonnade  of  the  fenced  courtyard 
and  another  in  the  porch  before  the  chamber  doors.  But  when, 
the  tenth  dark  night  was  come  upon  me,  then  burst  I  my  cunningly 
fitted  chamber  doors,  and  issued  forth  and  over-leapt  the  court- 
yard fence  lightly,  unmarked  of  watchmen  and  handmaidens. 
Then  fled  I  far  through  Hellas  of  wide  lawns,  and  came  to  deep- 
soiled  Phthia,  mother  of  flocks,  even  unto  king  Peleus;  and  he 
received  me  kindly  and  cherished  me  as  a  father  cherisheth  his 
only  son,  his  stripling  heir  of  great  possessions ;  and  he  made  me 
rich  and  gave  much  people  to  me,  and  I  dwelt  in  the  uttermost 


Chap.  I.]  THE   ILIAD    OF   HOMER  17 

part  of  Phthia  and  was  king  over  the  Dolopians.  Yea,  I  reared 
thee  to  this  greatness,  thou  godhke  Achilles.,  with  my  heart's 
love ;  for  with  none  other  wouldest  thou  go  unto  the  feast,  neither 
take  meat  in  the  hall,  till  that  I  had  set  thee  upon  my  knee  and 
stayed  thee  with  the  savoury  morsel  cut  first  for  thee,  and  put 
the  wine  cup  to  thy  lips.  Oft  hast  thou  stained  the  doublet  on 
my  breast  with  sputtering  of  wine  in  thy  sorry  helplessness.  Thus 
I  suffered  much  with  thee  and  much  I  toiled,  being  mindful  that 
the  gods  in  nowise  created  any  issue. of  my  body ;  but  I  made  thee 
my  son,  thou  godlike  Achilles,  that  thou  mayest  yet  save  me  from 
grievous  destruction.  Therefore,  Achilles,  rule  thy  high  spirit; 
neither  beseemeth  it  thee  to  have  a  ruthless  heart.  Even  in  like 
manner  have  we  heard  the  fame  of  those  heroes  that  were  of  old, 
as  oft  as  furious  anger  came  on  any ;  they  might  be  won  by  gifts 
and  prevailed  upon  by  speech.    .   .   ." 

And  Achilles  fleet  of  foot  made  answer  and  said  to  him  :  "  Phoi- 
nix  my  father,  thou  old  man  fosterling  of  Zeus,  such  honour  need 
I  in  no  wise ;  for  I  deem  that  I  have  been  honoured  by  the  judg- 
ment of  Zeus,  which  shall  abide  upon  me  amid  my  beaked  ships 
as  long  as  breath  tarrieth  in  my  body  and  my  limbs  are  strong. 
Moreover  I  will  say  this  thing  to  thee  and  lay  thou  it  to  thine 
heart :  trouble  not  my  soul  by  weeping  and  lamentation,  to  do 
the  pleasure  of  warrior  Atreides,  neither  beseemeth  it  thee  to 
cherish  him,  lest  thou  be  hated  of  me  that  cherish  thee.  It  were 
good  that  thou  with  me  shouldest  vex  him  that  vexeth  me.  Be 
thou  king  even  as  I,  and  share  my  sway  by  halves,  but  these  shall 
bear  my  message.  So  tarry  thou  here  and  lay  thee  to  rest  in  a 
soft  bed,  and  with  break  of  day  will  we  consider  whether  to  depart 
unto  our  own,  or  to  abide." 

He  spake,  and  nodded  his  brow  in  silence  unto  Patroklos  to 
spread  for  Phoinix  a  thick  couch,  that  the  others  might  bethink 
them  to  depart  from  the  hut  with  speed.  Then  spake  to  them 
Aias,  Telamon's  godlike  son,  and  said :  ''  Heaven-sprung  son  of 
Laertes,  Odysseus  of  many  wiles,  let  us  go  hence :  for  methinks 
the  purpose  of  our  charge*  will  not  by  this  journey  be  accom- 
plished ;  and  we  must  tell  the  news,  though  it  be  no  wise  good, 
with  all  speed  unto  the  Danaans,  that  now  sit  awaiting.  But 
Achilles  hath  wrought  his  proud  soul  to  fury  within  him  —  stub- 
born man,  that  recketh  naught  of  his  comrades'  love,  wherein 
we  worshipped  him  beyond  all  men  amid  the  ships  —  unmerciful ! 
Yet  doth  a  man  accept  recompense  of  his  brother's  murderer  or 
for  his  dead  son ;  and  so  the  man-slayer  for  a  great  price  abideth 


18  GENERAL   LITERATURE  [Part  I. 

in  his  own  land,  and  the  kinsman's  heart  is  appeased,  and  his 
proud  soul,  when  he  hath  taken  the  recompense.  But  for  thee, 
the  gods  have  put  within  thy  breast  a  spirit  implacable  and  evil, 
by  reason  of  one  single  damsel.  And  now  we  offer  thee  seven 
damsels,  far  best  of  all,  and  many  other  gifts  besides;  entertain 
thou  then  a  kindly  spirit,  and  have  respect  unto  thine  home; 
because  we  are  guests  of  thy  roof,  sent  of  the  multitude  of  Danaans, 
and  we  would  fain  be  nearest  to  thee  and  dearest  beyond  all  other 
Achaians,  as  many  as  there  be." 

And  Achilles  fleet  of  foot  made  answer  and  said  to  him :  "  Aias 
sprung  of  Zeus,  thou  son  of  Telamon,  prince  of  the  folk,  thou 
seemest  to  speak  all  this  almost  after  mine  own  mind;  but  my 
heart  swelleth  with  wrath  as  oft  as  I  bethink  me  of  those  things, 
how  Atreides  entreated  me  arrogantly  among  the  Argives,  as 
though  I  were  some  worthless  sojourner.  But  go  ye  and  declare 
my  message ;  I  will  not  take  thought  of  bloody  war  until  that 
wise  Priam's  son,  noble  Hector,  come  to  the  Myrmidons'  huts  and 
ships,  slaying  the  Argives,  and  smirch  the  ships  with  fire.  But 
about  mine  hut  and  black  ship  I  ween  that  Hector,  though  he  be 
very  eager  for  battle,  shall  be  refrained." 

So  said  he,  and  they  took  each  man  a  two-handled  cup,  and 
made  libation  and  went  back  along  the  line  of  ships ;  and  Odysseus 
led  the  way.  And  Patroklos  bade  his  fellows  and  handmaidens 
spread  with  all  speed  a  thick  couch  as  he  ordained,  fleeces  and  rugs 
and  fine  flock  of  linen.  Then  the  old  man  laid  him  down  and 
tarried  for  bright  Dawn.  And  Achilles  slept  in  the  corner  of  the 
morticed  hut,  and  by  his  side  lay  a  woman  that  he  brought  from 
Lesbos,  even  Phorbas'  daughter  fair-cheeked  Diomede.  And  on 
the  other  side  Patroklos  lay,  and  by  his  side  likewise  fair-girdled 
Iphis,  whom  noble  Achilles  gave  him  at  the  taking  of  steep  Skyros. 

Now  when  those  were  come  unto  Atreides'  huts,  the  sons  of 
the  Achaians  stood  up  on  this  side  and  on  that,  and  pledged  them 
in  cups  of  gold,  and  questioned  them;  and  Agamemnon  king  of 
men  asked  them  first:  "Come  now,  tell  me,  Odysseus  full  of 
praise,  thou  great  glory  of  the  Achaians;  will  he  save  the  ships 
from  consuming  fire,  or  said  he  nay,  and  hath  wrath  yet  hold  of 
his  proud  spirit?  " 

And  steadfast  goodly  Odysseus  answered  him:  "Most  noble 
son  of  Atreus,  Agamemnon  king  of  men,  he  yonder  hath  no  mind 
to  quench  his  wrath,  but  is  yet  more  filled  of  fury,  and  spurneth 
thee  and  thy  gifts.   ..." 


Chap.  I.]  THE   ILIAD   OF  HOMER  19 


BOOK   X 

How  Diomedes  and  Odysseus  slew  Dolon,  a  spy  of  the  Trojans  and 
themselves  spied  on  the  Trojan  camp,  and  took  the  horses  of  Rhesos, 
the  Thracian  king. 

4c  4c  :](  ^  :{c  4c  :|c 


BOOK    XI 

Despite  the  glorious  deeds  of  Agamemnon,  the  Trojans  press  hard  on 
the  Achaians,  and  the  beginning  of  evil  comes  on  Patroklos. 


Now  Patroklos  stood  at  the  doors,  a  godlike  man,  and  when 
the  old  man  beheld  him,  he  arose  from  his  shining  chair,  and  took 
him  by  the  hand,  and  led  him  in,  and  bade  him  be  seated.  But 
Patroklos,  from  over  against  him,  was  for  refusing,  and  spake 
and  said:  "No  time  to  sit  have  I,  old  man,  fosterling  of  Zeus, 
nor  wilt  thou  persuade  me.  Revered  and  dreaded  is  he  that 
sent  me  forth  to  ask  thee  who  this  man  is  that  thou  bringest  home 
wounded.  Nay,  but  I  know  myself,  for  I  see  Machaon,  shepherd 
of  the  host.  .  .  ." 

Then  knightly  Nestor  of  Gerenia  answered :  "  Wherefore  is 
Achilles  thus  sorry  for  the  sons  of  the  Achaians,  for  as  many  as 
are  wounded  with  darts  ?  He  knoweth  not  at  all  what  grief  hath 
arisen  in  the  camp :  for  the  best  men  lie  in  the  ships,  wounded  by 
shaft  or  smitten  by  spear.  Wounded  with  the  shaft  is  strong 
Diomedes,  son  of  Tydeus,  and  smitten  is  Odysseus,  spearman 
renowned,  and  Agamemnon,  [and  Eurypylos  hath  been  shot  with 
an  arrow  in  the  thigh,]  and  this  other  have  I  but  newly  carried 
out  of  battle,  wounded  with  an  arrow  from  the  bowstring.  But 
Achilles,  for  all  his  valiance,  careth  not  for  the  Danaans,  nor  pities 
them  at  all.  Doth  he  wait  till  the  fleet  ships  hard  by  the  shore 
shall  burn,  maugre  the  Argives,  in  the  consuming  fire,  and  till 
we  be  slain  one  upon  another?  For  my  strength  is  no  longer 
what  it  was  before  in  my  supple  limbs.  Would  that  I  were  in 
such  youth,  and  my  might  as  steadfast,  as  when  a  strife  was  set 
between  the  Eleians  and  ourselves,  about  a  raid  on  the  kine; 
what  time  I  slew  Itymoneus,  the  brave  son  of  Hypeirochos,  a 
dweller  in  Elis,  when  I  was  driving  the  spoil.  And  in  fighting  for 
his  kine  was  he  smitten  in  the  foremost  rank  by  a  spear  from 
my  hand,  and  he  fell,  and  about  him  were  the  country  folk  in  great 
fear.  And  a  prey  exceeding  abundant  did  we  drive  together  out 
of  the  plain,  fifty  herds  of  kine,  and  as  many  flocks  of  sheep. 


20  GENERAL   LITERATURE  [Part  I. 

and  as  many  droves  of  swine,  and  as  many  wide  flocks  of  goats, 
and  chestnut  horses  a  hundred  and  fifty,  all  mares,  and  many 
with  their  foals  at  their  feet.  And  these  by  night  we  drave  within 
Neleian  Pylos  to  the  citadel,  and  Neleus  was  glad  at  heart,  for 
that  so  much  wealth  came  to  me,  the  first  time  I  went  to  war. 
And  the  heralds  cried  aloud,  with  the  coming  of  the  dawn,  that 
all  men  should  meet  that  had  a  debt  owing  to  them  in  goodly 
Elis.  x\nd  the  men  that  were  leaders  of  the  Pylians  gathered 
together  and  divided  all,  for  to  many  did  the  Epeians  owe  a 
debt,  for  few  we  were,  and  oppressed,  that  dwelt  in  Pylos.  For 
the  mighty  Herakles  had  come  and  oppressed  us,  in  the  former 
years,  and  all  our  best  men  were  slain.  For  twelve  sons  were  we 
of  noble  Neleus,  whereof  I  alone  was  left,  and  all  the  others  perished. 
And  being  lifted  up  with  pride  because  of  these  things,  the  mail- 
clad  Epeians  did  us  despite,  and  devised  deeds  of  violence.  And 
out  of  the  spoil  that  old  man,  even  Neleus,  took  him  a  herd  of 
kine,  and  a  great  flock  of  sheep,  choosing  three  hundred,  and  the 
shepherds  with  them.  For  to  him  was  a  great  debt  owing  in 
goodly  Elis :  four  horses,  winners  of  prizes,  with  their  chariot 
had  gone  to  the  games,  and  were  to  run  for  a  tripod ;  but  these 
did  Angelas,  king  of  men,  hold  in  bond  in  that  place,  but  sent 
away  the  driver  sorrowing  for  the  horses.  By  which  words  and 
deeds  was  the  old  man  angered,  so  he  chose  out  much  booty, 
uncountable,  and  the  rest  he  gave  to  the  people  to  divide,  lest 
any  man  should  depart  deprived  by  him  of  his  equal  share.  So 
we  ordered  each  thing,  and  offered  victims  to  the  gods  about  the 
city.  .  .  . 

"  Such  was  I,  if  ever  among  men  I  was  such  an  one.  But  Achilles 
is  for  reaping  alone  the  reward  of  his  valour;  surely  methinks 
that  he  will  repent,  and  lament  sore  when  the  host  perisheth. 
O  friend,  surely  Menoitios  thus  gave  thee  command,  on  that  day 
when  he  sent  thee  out  of  Phthia  to  Agamemnon.  And  we  twain 
were  within  the  house,  I  and  goodly  Odysseus,  and  in  the  halls 
heard  we  all  things  even  as  he  commanded  thee.  For  we  had 
come  to  the  fair-set  halls  of  Peleus,  gathering  the  host  throughout 
Achaia  of  the  fair  dames.  There  then  we  found  the  hero  Menoi- 
tios within,  and  thee,  and  with  thee  Achilles.  And  Peleus  the 
Old,  the  lord  of  horses,  was  burning  the  fat  thighs  of  kine  to  Zeus, 
whose  joy  is  in  the  thunder,  in  the  precinct  of  his  court,  and  held 
in  his  hand  a  chalice  of  gold,  pouring  forth  the  bright  wine  upon 
the  burning  offerings.  And  ye  were  busy  about  the  flesh  of  the 
ox,  and  then  stood  we  in  the  doorway,  and  Achilles  leaped  up  in 


Chap.  I.]  THE   ILIAD   OF   HOMER  21 

amazement,  and  took  us  by  the  hand,  and  led  us  in,  and  bade  us 
be  seated,  and  set  before  us  well  the  entertainment  of  strangers, 
all  that  is  their  due.  But  when  we  had  taken  delight  in  eating 
and  drinking,  I  began  the  discourse,  and  bade  you  follow  with  us, 
and  ye  were  right  eager,  and  those  twain  laid  on  you  many  com- 
mands. Peleus  the  Old  bade  his  son  Achilles  be  ever  the  boldest 
in  fight,  and  pre-eminent  over  others,  but  to  thee  did  Menoitios 
thus  give  command,  the  son  of  Aktor :  ^My  child,  of  lineage  is 
Achilles  higher  than  thou,  and  thou  art  elder,  but  in  might  he  is 
better  far.  But  do  thou  speak  to  him  well  a  word  of  wisdom, 
and  put  it  to  him  gently,  and  show  him  what  things  he  should  do, 
and  he  will  obey  thee  to  his  profit.'  So  did  the  old  man  give 
thee  command,  but  thou  art  forgetful.  Nay,  but  even  now  speak 
thou  thus  and  thus  to  wise-hearted  Achilles,  if  perchance  he  will 
obey  thee.   .    .   ." 

So  spake  he,  and  roused  his  heart  within  his  breast,  and  he 
started  and  ran  by  the  ships  to  Achilles  of  the  seed  of  Aiakos. 
But  when  Patroklos  came  in  his  running  to  the  ships  of  godlike 
Odysseus,  where  was  their  assembly  and  place  of  law,  and  whereby 
also  were  their  altars  of  the  gods  established,  there  did  Euryplos 
meet  him,  Euaimon's  son,  of  the  seed  of  Zeus,  wounded  in  the 
thigh  with  an  arrow,  and  limping  out  of  the  battle.   .   .   . 

BOOK   XII 
How  the  Trojans  and  allies  broke  within  the  wall  of  the  Achaians. 

BOOK  XIII 

Poseidon  stirreth  up  the  Achaians  to  defend  the  ships.  The  valour  of 
Idomeneus. 

Even  then  Idomeneus,  though  his  hair  was  flecked  with  grey^ 
called  on  the  Danaans,  and  leaping  among  the  Trojans,  roused 
their  terror.  For  he  slew  Othryoneus  of  Kabesos,  a  sojourner 
there,  who  but  lately  had  followed  after  the  rumour  of  war,  and 
asked  in  marriage  the  fairest  of  the  daughters  of  Priam,  Kas- 
sandra,  without  gifts  of  wooing,  but  with  promise  of  a  mighty 
deed,  namely  that  he  would  drive  perforce  out  of  Troy-land  the 
sons  of  the  Achaians.  To  him  the  old  man  Priam  promised  and 
appointed  that  he  would  give  her,  so  he  fought  trusting  in  his 
promises.     And  Idomeneus  aimed   at   him  with  a  bright  spear 


22  GENERAL   LITERATURE  [Part  L 

and  cast  and  smote  him  as  he  came  proudly  striding  on,  and  the 
corslet  of  bronze  that  he  wore  availed  not,  but  the  lance  stuck 
in  the  midst  of  his  belly.  And  he  fell  with  a  crash,  and  Idomeneus 
boasted  over  him,  and  lifted  up  his  voice,  saying :  "  Othryoneus, 
verily  I  praise  thee  above  all  mortal  men,  if  indeed  thou  shalt 
accomplish  all  that  thou  hast  promised  to  Priam,  son  of  Dardanos, 
that  promised  thee  again  his  own  daughter.  Yea,  and  we  like- 
wise would  promise  as  much  to  thee,  and  fulfil  it,  and  would  give 
thee  the  fairest  daughter  of  the  son  of  Atreus,  and  bring  her  from 
Argos,  and  wed  her  to  thee,  if  only  thou  wilt  aid  us  to  take  the 
fair-set  citadel  of  Ilios.  Nay,  follow  us  that  we  may  make  a 
covenant  of  marriage  by  the  seafaring  ships,  for  we  are  no  hard 
exacters  of  gifts  of  wooing." 


BOOK   XIV 

How  Sleep  and  Hera  beguiled  Zeus  to  slumber  on  the  heights  of  Ida, 
and  Poseidon  spurred  on  the  Achaians  to  resist  Hector,  and  how  Hector 
was  wounded. 


BOOK  XV 

Zeus  awakening  biddeth  Apollo  revive  Hector,  and  restore  the  fortune 
of  the  Trojans.     Fire  is  thrown  on  the  ship  of  Protesilaos. 


BOOK   XVI 

How  Patroklos  fought  in  the  armor  of  Achilles,  and  drove  the  Trojans 
from  the  ships,  but  was  slain  at  last  by  Hector. 

*  *  *  *  *  *  5k 


BOOK  XVII 
Of  the  battle  around  the  body  of  Patroklos. 

*  *  4c  H«  *  *  * 

BOOK  XVIII 

How  Achilles  grieved  for  Patroklos,  and  how  Thetis  asked  for  him  new 
armour  of  Hephaistos ;   and  of  the  making  of  the  armour. 

*  *  *  *  *  *  * 

Then  made  answer  unto  her  the  lame  god  of  great  renown : 
'*Be  of  good  courage,  let  not  these  things  trouble  thy  heart. 


Chap.  I.]  THE   ILIAD    OF    HOMER  23 

Would  that  so  might  I  avail  to  hide  him  far  from  dolorous  death, 
when  dread  fate  cometh  upon  him,  as  surely  shall  goodly  armour 
be  at  his  need,  such  as  all  men  afterward  shall  marvel  at,  who- 
soever may  behold." 

Thus  saying  he  left  her  there  and  went  unto  his  bellows  and 
turned  them  upon  the  fire  and  bade  them  work.  And  the  bellows, 
twenty  in  all,  blew  on  the  crucibles,  sending  deft  blasts  on  every 
side,  now  to  aid  his  labour  and  now  anon  howsoever  Hephaistos 
willed  and  the  work  went  on.  And  he  threw  bronze  that  weareth 
not  into  the  fire,  and  tin  and  precious  gold  and  silver,  and  next  he 
set  on  an  anvil-stand  a  great  anvil,  and  took  in  his  hand  a  sturdy 
hammer,  and  in  the  other  he  took  the  tongs. 

First  fashioned  he  a  shield  great  and  strong,  adorning  it  all  over, 
and  set  thereto  a  shining  rim,  triple,  bright-glancing,  and  therefrom 
a  silver  baldrick.  Five  were  the  folds  of  the  shield  itself;  and 
therein  fashioned  he  much  cunning  work  from  his  wise  heart. 

There  wrought  he  the  earth,  and  the  heavens,  and  the  sea,  and 
the  unwearying  sun,  and  the  moon  waxing  to  the  full,  and  the 
signs  every  one  wherewith  the  heavens  are  crowned,  Pleiads  and 
Hyads  and  Orion's  might,  and  the  Bear  that  men  call  also  the 
Wain,  her  that  turneth  in  her  place  and  watcheth  Orion,  and  alone 
hath  no  part  in  the  baths  of  Ocean. 

Also  he  fashioned  therein  two  fair  cities  of  mortal  men.  In  the 
one  were  espousals  and  marriage  feasts,  and  beneath  the  blaze  of 
torches  they  were  leading  the  brides  from  their  chambers  through 
the  city,  and  loud  arose  the  bridal  song.  And  young  men  were 
whirling  in  the  dance,  and  among  them  flutes  and  viols  sounded 
high ;  and  the  women  standing  each  at  her  door  were  marvelUng. 
But  the  folk  were  gathered  in  the  assembly  place;  for  there  a 
strife  was  arisen,  two  men  striving  about  the  blood-price  of  a  man 
slain ;  the  one  claimed  to  pay  full  atonement,  expounding  to  the 
people,  but  the  other  denied  him  and  would  take  naught;  and 
both  were  fain  to  receive  arbitrament  at  the  hand  of  a  daysman. 
And  the  folk  were  cheering  both,  as  they  took  part  on  either  side. 
And  heralds  kept  order  among  the  folk,  while  the  elders  on  polished 
stones  were  sitting  in  the  sacred  circle,  and  holding  in  their  hands 
staves  from  the  loud-voiced  heralds.  Then  before  the  people  they 
rose  up  and  gave  judgment  each  in  turn.  And  in  the  midst  lay  two 
talents  of  gold,  to  be  given  unto  him  who  should  utter  among  them 
the  most  righteous  doom. 

But  around  the  other  city  were  two  armies  in  siege  with  glitter- 
ing arms.     And  two  counsels  found  favour  among  them,  either 


24  GENERAL   LITERATURE  [Part  I. 

to  sack  the  town  or  to  share  all  with  the  towns-folk  even  whatsoever 
substance  the  fair  city  held  within.  But  the  besieged  were  not  yet 
yielding,  but  arming  for  an  ambushment.  On  the  wall  there  stood 
to  guard  it  their  dear  wives  and  infant  children,  and  with  these 
the  old  men ;  but  the  rest  went  forth,  and  their  leaders  were  Ares 
and  Pallas  Athene,  both  wrought  in  gold,  and  golden  was  the 
vesture  they  had  on.  Goodly  and  great  were  they  in  their 
armour,  even  as  gods,  far  seen  around,  and  the  folk  at  their  feet 
were  smaller.  And  when  they  came  where  it  seemed  good  to  them 
to  lay  ambush,  in  a  river  bed  where  there  was  a  common  watering- 
place  of  herds,  there  they  set  them,  clad  in  glittering  bronze.  And 
two  scouts  were  posted  by  them,  afar  off  to  spy  the  coming  of 
flocks  and  of  oxen  with  crooked  horns.  And  presently  came  the 
cattle,  and  with  them  two  herdsmen  playing  on  pipes,  that  took 
no  thought  of  the  guile.  Then  the  others  when  they  beheld  these 
ran  upon  them  and  quickly  cut  off  the  herds  of  oxen  and  fair  flocks 
of  white  sheep,  and  slew  the  shepherds  withal.  But  the  besiegers, 
as  they  sat  before  the  speech-places  and  heard  much  din  among 
the  oxen,  mounted  forthwith  behind  their  high-stepping  horses, 
and  came  up  with  speed.  Then  they  arrayed  their  battle  and 
fought  beside  the  river  banks,  and  smote  one  another  with  bronze- 
shod  spears.  And  among  them  mingled  Strife  and  Tumult,  and 
fell  Death,  grasping  one  man  alive  fresh-wounded,  another  without 
wound,  and  dragging  another  dead  through  the  mellay  by  the  feet ; 
and  the  raiment  on  her  shoulders  was  red  with  the  blood  of  men. 
Like  living  mortals  they  hurled  together  and  fought,  and  haled 
the  corpses  each  of  the  other's  slain. 

Furthermore  he  set  in  the  shield  a  soft  fresh-ploughed  field, 
rich  tilth  and  wide,  the  third  time  ploughed ;  and  many  ploughers 
therein  drave  their  yokes  to  and  fro  as  they  wheeled  about.  When- 
soever they  came  to  the  boundary  of  the  field  and  turned,  then 
would  a  man  come  to  each  and  give  into  his  hands  a  goblet  of  sweet 
wine,  while  others  would  be  turning  back  along  the  furrows,  fain 
to  reach  the  boundary  of  the  deep  tilth.  And  the  field  grew  black 
behind  and  seemed  as  it  were  a-ploughing,  albeit  of  gold,  for  this 
was  the  great  marvel  of  the  work. 

Furthermore  he  set  therein  the  demesne-land  of  a  king,  where 
hinds  were  reaping  with  sharp  sickles  in  their  hands.  Some  arm- 
fuls  along  the  swathe  were  falling  in  rows  to  the  earth,  whilst 
others  the  sheaf-binders  were  binding  in  twisted  bands  of  straw. 
Three  sheaf-binders  stood  over  them,  while  behind  boys  gathering 
corn  and  bearing  it  in  their  arms  gave  it  constantly  to  the  binders ; 


Chap.  I.]  THE   ILIAD   OF   HOMER  25 

and  among  them  the  king  in  silence  was  standing  at  the  swathe 
with  his  staff,  rejoicing  in  his  heart.  And  henchmen  apart  be- 
neath an  oak  were  making  ready  a  feast,  and  preparing  a  great  ox 
they  had  sacrificed ;  while  the  women  were  strewing  much  white 
barley  to  be  a  supper  for  the  hinds. 

Also  he  set  therein  a  vineyard  teeming  plenteously  with  clusters, 
wrought  fair  in  gold ;  black  were  the  grapes,  but  the  vines  hung 
throughout  on  silver  poles.  And  around  it  he  ran  a  ditch  of  cyanus, 
and  round  that  a  fence  of  tin ;  and  one  single  pathway  led  to  it, 
whereby  the  vintagers  might  go  when  they  should  gather  the  vin- 
tage. And  maidens  and  striplings  in  childish  glee  bare  the  sweet 
fruit  in  plaited  baskets.  And  in  the  midst  of  them  a  boy  made 
pleasant  music  on  a  clear-toned  viol,  and  sang  thereto  a  sweet 
Linos-song  with  delicate  voice;  while  the  rest  with  feet  falling 
together  kept  time  with  the  music  and  song. 

Also  he  wrought  therein  a  herd  of  kine  with  upright  horns,  and 
the  kine  were  fashioned  of  gold  and  tin,  and  with  lowing  they  hur- 
ried from  the  byre  to  pasture  beside  a  murmuring  river,  beside 
the  waving  reed.  And  herdsmen  of  gold  were  following  with  the 
kine,  four  of  them,  and  nine  dogs  fleet  of  foot  came  after  them. 
But  two  terrible  lions  among  the  foremost  kine  had  seized  a  loud- 
roaring  bull  that  bellowed  mightily  as  they  haled  him,  and  the 
dogs  and  the  young  men  sped  after  him.  The  lions  rending  the 
great  bull's  hide  were  devouring  his  vitals  and  his  black  blood; 
while  the  herdsmen  in  vain  tarred  on  their  fleet  dogs  to  set  on, 
for  they  shrank  from  biting  the  lions  but  stood  hard  by  and  barked 
and  swerved  away. 

Also  the  glorious  lame  god  wrought  therein  a  pasture  in  a  fair 
glen,  a  great  pasture  of  white  sheep,  and  a  steading,  and  roofed 
huts,  and  folds. 

Also  did  the  glorious  lame  god  devise  a  dancing-place  like  unto 
that  which  once  in  wide  Knosos  Daidalos  wrought  for  Ariadne  of 
the  lovely  tresses.  There  were  youths  dancing  and  maidens  of 
costly  wooing,  their  hands  upon  one  another's  wrists.  Fine  linen 
the  maidens  had  on,  and  the  youths  well-woven  doublets  faintly 
glistening  with  oil.  Fair  wreaths  had  the  maidens,  and  the  youths 
daggers  of  gold  hanging  from  silver  baldrics.  And  now  would  they 
run  round  with  deft  feet  exceeding  lightly,  as  when  a  potter  sitting 
by  his  wheel  that  fitteth  between  his  hands  maketh  trial  of  it 
whether  it  run :  and  now  anon  they  would  run  in  lines  to  meet 
each  other.  And  a  great  company  stood  round  the  lovely  dance  in 
joy ;  [and  among  them  a  divine  minstrel  was  making  music  on  his 


26  GENERAL   LITERATURE  [Part  I. 

lyre,]  and  through  the  midst  of  them,  leading  the  measure,  two 
tumblers  whirled. 

Also  he  set  therein  the  great  might  of  the  River  of  Ocean  around 
the  uttermost  rim  of  the  cunningly-fashioned  shield. 

Now  when  he  had  wrought  the  shield  great  and  strong,  then 
wrought  he  him  a  corslet  brighter  than  a  flame  of  fire,  and  he 
wrought  him  a  massive  helmet  to  fit  his  brows,  goodly  and  graven, 
and  set  thereon  a  crest  of  gold,  and  he  wrought  him  greaves  of 
pliant  tin. 

So  when  the  renowned  lame  god  had  finished  all  the  armour,  he 
took  and  laid  it  before  the  mother  of  Achilles.  Then  she  like  a 
falcon  sprang  down  from  snowy  Olympus,  bearing  from  Hephaistos 
the  glittering  arms. 

BOOK  XIX 

How  Achilles  and  Agamemnon  were  reconciled  before  the  assembly 
of  the  Achaians,  and  Achilles  went  forth  with  them  to  battle. 


BOOK  XX 
How  Achilles  made  havoc  among  the  men  of  Troy. 

^  ^  ^  9|«  9|C  9|C  3|C 

BOOK   XXI 

How  Achilles  fought  with  the  River,  and  chased  the  men  of  Troy 
within  their  gates. 


BOOK  XXII 

How  Achilles  fought  with  Hector,  and  slew  him,  and  brought  his  body 
to  the  ships. 


BOOK  XXIII 
Of  the  funeral  of  Patroklos,  and  the  funeral  games. 

«  «  *  *  4c  *  iic 

BOOK  XXIV 

How  the  body  of  Hector  was  ransomed,  and  of  his  funeral. 

♦  4:  *  4:  *  *  4c 


Chapter  II 
THE  ODYSSEY   OF   HOMER  i 

BOOK   I 

In  a  Council  of  the  Gods,  Poseidon  absent,  Pallas  procureth  an  order ' 
for  the  restitution  of  Odysseus ;    and  appearing  to  his  son  Telemachus, 
in  human  shape,  adviseth  him  to  complain  of  the  Wooers  before  the  Coun- 
cil of  the  people,  and  then  go  to  Pylos  and  Sparta  to  inquire  about  his 
father, 

.  .  .  Then  from  the  heights  of  Olympus  she  came  glancing  down, 
and  she  stood  in  the  land  of  Ithaca,  at  the  entry  of  the  gate  of 
Odysseus,  on  the  threshold  of  the  courtyard,  holding  in  her  hand 
the  spear  of  bronze,  in  the  semblance  of  a  stranger,  Mentes,  the 
captain  of  the  Taphians.  And  there  she  found  the  lordly  wooers  : 
now  they  were  taking  their  pleasure  at  draughts  in  front  of  the 
doors,  sitting  on  hides  of  oxen,  which  themselves  had  slain.  And 
of  the  henchmen  and  the  ready  squires,  some  were  mixing  for  them 
wine  and  water  in  bowls,  and  some  again  were  washing  the  tables 
with  porous  sponges  and  were  setting  them  forth,  and  others  were 
carving  flesh  in  plenty. 

And  godlike  Telemachus  was  far  the  first  to  descry  her,  for  he  was 
sitting  with  a  heavy  heart  among  the  wooers  dreaming  on  his  good 
father,  if  haply  he  might  come  somewhence,  and  make  a  scattering 
of  the  wooers  there  throughout  the  palace,  and  himself  get  honor 
and  bear  rule  among  his  own  possessions.  Thinking  thereupon,  as 
he  sat  among  wooers,  he  saw  Athene  —  and  he  went  straight  to  the 
outer  porch,  for  he  thought  it  blame  in  his  heart  that  a  stranger 
should  stand  long  at  the  gates  :  and  halting  nigh  her  he  clasped  her 
right  hand  and  took  from  her  the  spear  of  bronze,  and  uttered  his 
voice  and  spake  unto  her  winged  words : 

"Hail,  stranger,  with  us  thou  shalt  be  kindly  entreated,  and 
thereafter,  when  thou  hast  tasted  meat,  thou  shall  tell  us  that 
whereof  thou  hast  need." 

Therewith  he  led  the  way,  and  Pallas  Athene  followed.  And 
when  they  were  now  within  the  lofty  house,  he  set  her  spear  that 

1  [From  the  prose  translation  by  S.  H.  Butcher  and  A.  Lang,  London, 
1912,  with  the  consent  of  Macmillan  and  Co.,  Limited,  publisher.] 

27 


28  GENERAL   LITERATURE  [Part  I. 

he  bore  against  a  tall  pillar,  within  the  polished  spear-stand,  where 
stood  many  spears  besides,  even  those  of  Odysseus  of  the  hardy 
heart ;  and  he  led  the  goddess  and  seated  her  on  a  goodly  carven 
chair,  and  spread  a  linen  cloth  thereunder,  and  beneath  was  a 
footstool  for  the  feet.  For  himself  he  placed  an  inlaid  seat  hard 
by,  apart  from  the  company  of  the  wooers,  lest  the  stranger  should 
be  disquieted  by  the  noise  and  should  have  a  loathing  for  tlie  meal, 
being  come  among  overweening  men,  and  also  that  he  might  ask 
him  about  his  father  that  was  gone  from  his  home. 

Then  a  handmaid  bare  water  for  the  washing  of  hands  in  a 
goodly  golden  ewer,  and  poured  it  forth  over  a  silver  basin  to  wash 
withal,  and  drew  to  their  side  a  polished  table.  And  a  grave  dame 
bare  wheaten  bread  and  set  it  by  them,  and  laid  on  the  board 
many  dainties,  giving  freely  of  such  things  as  she  had  by  her. 
And  a  carver  lifted  and  placed  by  them  platters  of  divers  kinds  of 
flesh,  and  nigh  them  he  set  golden  bowls,  and  a  henchman  walked 
to  and  fro  pouring  out  to  them  the  wine. 

Then  in  came  the  lordly  wooers;  and  they  sat  them  down  in 
rows  on  chairs  and  on  high  seats,  and  henchmen  poured  water  on 
their  hands,  and  maidservants  piled  wheaten  bread  by  them  in 
baskets,  and  pages  crowned  the  bowls  with  drink;  and  they 
stretched  forth  their  hands  upon  the  good  cheer  spread  before  them. 
Now  when  the  wooers  had  put  from  them  the  desire  of  meat  and 
drink,  they  minded  them  of  other  things,  even  of  the  song  and 
dance :  for  these  are  the  crown  of  the  feast.  And  a  henchman 
placed  a  beauteous  lyre  in  the  hands  of  Phemius,  who  was  minstrel 
to  the  wooers  despite  his  will.  Yea  and  as  he  touched  the  lyre  he 
lifted  up  his  voice  in  sweet  song. 

But  Telemachus  spake  unto  grey-eyed  Athene,  holding  his  head 
close  to  her  that  those  others  might  not  hear :  "  Dear  stranger, 
wilt  thou  of  a  truth  be  wroth  at  the  word  that  I  shall  say  ?  Yonder 
men  verily  care  for  such  things  as  these,  the  lyre  and  song,  lightly, 
as  they  that  devour  the  livelihood  of  another  without  atonement, 
of  that  man  whose  white  bones,  it  may  be,  lie  wasting  in  the  rain 
upon  the  mainland,  or  the  billow  rolls  them  in  the  brine.  Were 
but  these  men  to  see  him  returned  to  Ithaca,  they  all  would  pray 
rather  for  greater  speed  of  foot  than  for  gain  of  gold  and  raiment. 
But  now  he  hath  perished,  even  so,  an  evil  doom,  and  for  us  is  no 
comfort,  no,  not  though  any  of  earthly  men  should  say  that  he  will 
come  again.  Gone  is  the  day  of  his  returning  !  But  come  declare 
me  this,  and  tell  me  all  plainly  :  Who  art  thou  of  the  sons  of  men, 
and  whence  ?    Where  is  thy  city,  where  are  they  that  begat  thee  ? 


Chap.  II.]  THE    ODYSSEY   OF   HOMER  29 

Say,  on  what  manner  of  ship  didst  thou  come,  and  how  did  sailors 
bring  thee  to  Ithaca,  and  who  did  they  avow  themselves  to  be,  for 
in  nowise  do  I  deem  that  thou  camest  hither  by  land.  And  herein 
tell  me  true,  that  I  may  know  for  a  surety  whether  thou  art  a  new- 
comer, or  whether  thou  art  a  guest  of  the  house,  seeing  that  many 
were  the  strangers  that  came  to  our  home,  for  that  he  too  had 
voyaged  much  among  men." 

Then  the  goddess,  grey-eyed  Athene,  answered  him  :  "  Yea  now, 
I  will  plainly  tell  thee  all.  I  avow  me  to  be  Mentes,  son  of  wise 
Anchialus,  and  I  bear  rule  among  the  Taphians,  lovers  of  the  oar. 
And  now  am  I  come  to  shore,  as  thou  seest,  with  ship  and  crew, 
sailing  over  the  wine-dark  sea,  unto  men  of  strange  speech,  even  to 
Temesa,  in  quest  of  copper,  and  my  cargo  is  shining  iron.  And 
there  my  ship  is  lying  toward  the  upland,  away  from  the  city,  in 
the  harbour  of  Rheithron  beneath  wooded  Neion  :  and  we  declare 
ourselves  to  be  friends  one  of  the  other,  and  of  houses  friendly, 
from  of  old.  .  .  ." 


Then  the  goddess,  grey-eyed  Athene,  spake  unto  him,  and  said : 
"  Surely  no  nameless  lineage  have  the  gods  ordained  for  thee  in 
days  to  come,  since  Penelope  bore  thee  so  goodly  a  man.  But 
come,  declare  me  this,  and  tell  it  all  plainly.  What  feast,  nay, 
what  rout  is  this  ?  What  hast  thou  to  do  therewith  ?  Is  it  a  clan 
drinking,  or  a  w^edding  feast,  for  here  we  have  no  banquet  where 
each  man  brings  his  share  ?  In  such  wise,  flown  with  insolence,  do 
they  seem  to  me  to  revel  wantonly  through  the  house :  and  well 
might  any  man  be  wToth  to  see  so  many  deeds  of  shame,  whatso 
wise  man  came  among  them." 

Then  wise  Telemachus  answered  her,  and  said  :  "  Sir,  forasmuch 
as  thou  questionest  me  of  these  things  and  inquirest  thereof,  our 
house  was  once  like  to  have  been  rich  and  honourable,  while  yet 
that  man  was  among  his  people.  But  now  the  gods  willed  it 
otherwise,  in  evil  purpose,  who  have  made  him  pass  utterly  out  of 
sight  as  no  man  ever  before.  Truly  I  would  not  even  for  his  death 
make  so  great  sorrow,  had  he  fallen  among  his  fellows  in  the  land 
of  the  Trojans,  or  in  the  arms  of  his  friends  when  he  had  wound  up 
the  clew  of  war.  Then  would  the  w^hole  Achsean  host  have  builded 
him  a  barrow,  and  even  for  his  son  would  he  have  won  great  glory 
in  the  after  days.  But  now  the  spirits  of  the  storm  have  swept 
him  away  inglorious.  He  is  gone,  lost  to  sight  and  hearsay,  but 
for  me  hath  he  left  anguish  and  lamentation ;  nor  henceforth  is  it 


30  GENERAL   LITERATURE  [Part  I. 

for  him  alone  that  I  mourn  and  weep,  since  the  gods  have  wrought 
for  me  other  sore  distress.  For  all  the  noblest  that  are  princes  in 
the  isles,  in  Dulichium  and  Same  and  wooded  Zacynthus,  and  as 
many  as  lord  it  in  rocky  Ithaca,  all  these  woo  my  mother  and  waste 
my  house.  But  as  for  her  she  neither  refuseth  the  hated  bridal, 
nor  hath  the  heart  to  make  an  end  :  so  they  devour  and  minish  my 
house,  and  ere  long  will  they  make  havoc  likewise  of  myself." 

Then  in  heavy  displeasure  spake  unto  him  Pallas  Athene : 
**  God  help  thee !  thou  art  surely  sore  in  need  of  Odysseus  that  is 
afar,  to  stretch  forth  his  hands  upon  the  shameless  wooers.  .  .  . 
But  I  charge  thee  to  take  counsel  how  thou  may  est  thrust  forth 
the  wooers  from  the  hall.  Come  now,  mark  and  take  heed  unto 
my  words.  On  the  morrow  call  the  Achsean  lords  to  the  assembly, 
and  declare  thy  saying  to  all,  and  take  the  gods  to  witness.  As  for 
the  wooers  bid  them  scatter  them  each  one  to  his  own,  and  for  thy 
mother,  if  her  heart  is  moved  to  marriage,  let  her  go  back  to  the 
hall  of  that  mighty  man  her  father,  and  her  kinsfolk  will  furnish  a 
wedding  feast,  and  array  the  gifts  of  wooing  exceeding  many,  all 
that  should  go  back  with  a  daughter  dearly  beloved.  And  to 
thyself  I  will  give  a  word  of  wise  counsel,  if  perchance  thou  wilt 
hearken.  Fit  out  a  ship,  the  best  thou  hast,  with  twenty  oarsmen, 
and  go  to  inquire  concerning  thy  father  that  is  long  afar,  if  per- 
chance any  man  shall  tell  thee  aught,  or  if  thou  mayest  hear  the 
voice  from  Zeus,  which  chiefly  brings  tidings  to  men.  Get  thee 
first  to  Pylos  and  inquire  of  goodly  Nestor,  and  from  thence  to 
Sparta  to  Menelaus  of  the  fair  hair,  for  he  came  home  the  last  of  the 
mail-coated  Achseans.  If  thou  shalt  hear  news  of  the  life  and  the 
returning  of  thy  father,  then  verily  thou  mayest  endure  the  wast- 
ing for  yet  a  year.  But  if  thou  shalt  hear  that  he  is  dead  and  gone, 
return  then  to  thine  own  dear  country  and  pile  his  mound,  and 
over  it  pay  burial  rites,  full  many  as  is  due,  and  give  thy  mother  to  a 
husband.  But  when  thou  hast  done  this  and  made  an  end,  there- 
after take  counsel  in  thy  mind  and  heart,  how  thou  mayest  slay 
the  wooers  in  thy  halls,  whether  by  guile  or  openly.  ..." 


[Athene]  ..."  Hold  me  now  no  longer,  that  am  eager  for  the 
way.  But  whatsoever  gift  thine  heart  shall  bid  thee  give  me,  when 
I  am  on  my  way  back  let  it  be  mine  to  carry  home  :  bear  from  thy 
stores  a  gift  right  goodly,  and  it  shall  bring  thee  the  worth 
thereof  in  return." 


Chap.  II.]  THE   ODYSSEY   OF   HOMER  31 

Now  the  renowned  minstrel  was  singing  to  the  wooers,  and  they 
sat  listening  in  silence ;  and  his  song  was  of  the  pitiful  return  of  the 
Achseans,  that  Pallas  Athene  laid  on  them  as  they  came  forth 
from  Troy.  And  from  her  upper  chamber  the  daughter  of  Icarius, 
wise  Penelope,  caught  the  glorious  strain,  and  she  went  down  the 
high  stairs  from  her  chamber,  not  alone,  for  two  of  her  handmaids 
bare  her  company.  .  .  .  Then  she  fell  a  weeping,  and  spake  unto 
the  divine  minstrel : 

'*.  .  .  Cease  from  this  pitiful  strain,  that  ever  wastes  my  heart 
within  my  breast,  since  to  me  above  all  women  hath  come  a  sorrow 
comfortless.  ..."  Then  wise  Telemachus  answered  her,  and 
said  :  "O  my  mother,  why  then  dost  thou  grudge  the  sweet  minstrel 
to  gladden  us  as  his  spirit  moves  him  ?  .  .  .  Let  thy  heart  and 
mind  endure  to  listen,  for  not  Odysseus  only  lost  in  Troy  the  day 
of  his  returning,  but  many  another  likewise  perished.  Howbeit 
go  to  thy  chamber  and  mind  thine  own  housewiferies,  the  loom  and 
distaff,  and  bid  thy  handmaids  ply  their  tasks.  But  speech  shall 
be  for  men,  for  all,  but  for  me  in  chief ;  for  mine  is  the  lordship  in 
the  house." 


Now  the  wooers  clamoured  throughout  the  shadowy  halls.  .  .  , 
And  wise  Telemachus  first  spake  among  them :  .   .   . 

Then  Antinous,  son  of  Eupeithes,  answered  him  :  "  Telemachus, 
in  very  truth  the  gods  themselves  instruct  thee  to  be  proud  of 
speech  and  boldly  to  harangue.  Never  may  Cronion  make  thee 
king  in  seagirt  Ithaca,  which  thing  is  of  inheritance  thy  right!" 

Then  wise  Telemachus  answered  him,  and  said :  ".  .  .  Nay, 
verily  it  is  no  ill  thing  to  be  a  king  :  the  house  of  such  an  one  quickly 
waxeth  rich  and  himself  is  held  in  greater  honour.  Howsoever 
there  are  many  other  kings  of  the  Achseans  in  seagirt  Ithaca,  kings 
young  and  old ;  someone  of  them  shall  surely  have  this  kingship 
since  goodly  Odysseus  is  dead.  But  as  for  me,  I  will  be  lord  of  our 
own  house  and  thralls,  that  goodly  Odysseus  gat  me  with  his 
spear." 

Then  Eurymachus,  son  of  Polybus,  answered  him,  saying : 
"Telemachus,  on  the  knees  of  the  gods  it  surely  Hes,  what  man  is  to 
be  king  over  the  Achseans  in  seagirt  Ithaca.  But  mayest  thou 
keep  thine  own  possessions  and  be  lord  in  thine  own  house  !  .  .  . " 

.  .  .  Now  the  wooers  turned  them  to  the  dance  and  the  de- 
lightsome song,  and  made  merry,  and  waited  till  evening  should 
come  on.  .  .  . 


32  GENERAL   LITERATURE  [Part  I, 

But  Telemachus,  where  his  chamber  was  builded  high  up  in  the 
fair  court,  in  a  place  with  wide  prospect,  thither  betook  him  to  his 
bed,  pondering  many  thoughts  in  his  mind ;  and  with  him  went 
trusty  Eurycleia,  and  bare  for  him  torches  burning.  She  was  the 
daughter  of  Ops,  son  of  Peisenor,  and  Laertes  bought  her  on  a 
time  with  his  wealth,  while  as  yet  she  was  in  her  first  youth,  and 
gave  for  her  the  worth  of  twenty  oxen.  .  .  . 


BOOK  II 

Telemachus  complains  in  vain,  and  borrowing  a  ship,  goes  secretly  to 
Pylos  by  night.     And  how  he  was  there  received. 

Now  as  soon  as  early  Dawn  shone  forth,  the  rosy-fingered,  the 
dear  son  of  Odysseus  gat  him  up  from  his  bed,  and  put  on  his 
raiment  and  cast  his  sharp  sword  about  his  shoulder,  and  beneath 
his  smooth  feet  he  bound  his  goodly  sandals,  and  stept  forth  from 
his  chamber  in  presence  like  a  god.  And  straightway  he  bade  the 
clear-voiced  heralds  to  call  the  long-haired  Achseans  to  the  as- 
sembly. And  the  heralds  called  the  gathering,  and  the  Achseans 
were  assembled  quickly.  Now  when  they  were  gathered  and  come 
together,  he  went  on  his  way  to  the  assembly  holding  in  his  hand  a 
spear  of  bronze,  —  not  alone  he  went,  for  two  swift  hounds  bare 
him  company.  Then  Athene  shed  on  him  a  wondrous  grace,  and 
all  the  people  marvelled  at  him  as  he  came.  And  he  sat  him  in  his 
father's  seat  and  the  elders  gave  place  to  him. 

Then. the  lord  ^Egyptus  spake  among  them  first;  bowed  was  he 
with  age,  and  skilled  in  things  past  number :  .  .  .  "Hearken  now 
to  me,  ye  men  of  Ithaca,  to  the  word  that  I  shall  say.  Never  hath 
our  assembly  or  session  been  since  the  day  that  goodly  Odysseus 
departed  in  the  hollow  ships.  And  now  who  was  minded  thus  to 
assemble  us  ?  On  what  man  hath  such  sore  need  come,  of  the  young 
men  or  of  the  elder  born  ?  Hath  he  heard  some  tidings  of  the  host 
now  returning,  which  he  might  plainly  declare  to  us,  for  that  he 
first  learned  thereof,  or  doth  he  show  forth  and  tell  some  other 
matter  of  the  common  weal  ?  Methinks  he  is  a  true  man  —  good 
luck  be  with  him !  Zeus  vouchsafe  him  some  good  thing  in  this 
turn,  even  all  his  heart's  desire  ! " 

So  spake  he,  and  the  dear  son  of  Odysseus  was  glad  at  the  omen 
of  the  word  ;  nor  sat  he  now  much  longer,  but  he  burned  to  speak, 
and  he  stood  in  mid  assembly ;  and  the  herald  Peisenor,  skilled  in 
sage  counsels,  placed  the  staff  in  his  hands.  Then  he  spake, 
accosting  the  old  man  first : 


Chap.  II.]  THE   ODYSSEY   OF   HOMER  33 

"Old  man,  he  is  not  far  off,  and  soon  shalt  thou  know  it  for 
thyself,  he  who  called  the  folk  together,  even  I :  for  sorrow  hath 
come  to  me  in  chief.  Neither  have  I  heard  any  tidings  of  the 
host  now  returning,  which  I  may  plainly  declare  to  you,  for  that 
I  first  learned  thereof ;  neither  do  I  show  forth  or  tell  any  other 
matter  of  the  common  weal,  but  mine  own  need,  for  that  evil 
hath  befallen  my  house,  a  double  woe.  First,  I  have  lost  my  noble 
sire,  who  sometime  was  king  among  you  here,  and  was  gentle  as 
a  father;  and  now  is  there  an  evil  yet  greater  far,  which  surely 
shall  soon  make  grievous  havoc  of  my  whole  house  and  ruin  all 
my  livelihood.  My  mother  did  certain  wooers  beset  sore  against 
her  will,  even  the  sons  of  those  men  that  here  are  the  noblest. 
They  are  too  craven  to  go  to  the  house  of  her  father  Icarius, 
that  he  may  himself  set  the  bride-price  for  his  daughter,  and 
bestow  her  on  whom  he  will,  even  on  him  who  finds-  favour  in  his 
sight.  But  they  resorting  to  our  house  day  by  day  sacrifice  oxen 
and  sheep  and  fat  goats,  and  keep  revel,  and  drink  the  dark  wine 
recklessly,  and  lo,  our  great  wealth  is  wasted,  for  there  is  no  man 
now  alive  such  as  Odysseus  was,  to  keep  ruin  from  the  house. 
As  for  me  I  am  nowise  strong  like  him  to  ward  mine  own ;  verily 
to  the  end  of  my  days  shall  I  be  a  weakling  and  all  unskilled  in 
prowess.  Truly  I  would  defend  me  if  but  strength  were  mine; 
for  deeds  past  sufferance  have  now  been  wrought,  and  now  my 
house  is  wasted  utterly  beyond  pretence  of  right.  Resent  it  in 
your  own  hearts,  and  have  regard  to  your  neighbours  who  dwell 
around,  and  tremble  ye  at  the  anger  of  the  gods,  lest  haply  they 
turn  upon  you  in  wrath  at  your  evil  deeds.  I  pray  you  by  Olym- 
pian Zeus  and  by  Themis,  who  looseth  and  gathereth  the  meetings 
of  men,  let  be,  my  friends,  and  leave  me  alone  to  waste  in  bitter 
grief ;  —  unless  it  so  be  that  my  father,  the  good  Odysseus,  out 
of  evil  heart  wrought  harm  to  the  goodly-greaved  Achseans,  in 
quittance  whereof  ye  now  work  me  harm  out  of  evil  hearts,  and 
spur  on  these  men.  Better  for  me  that  ye  yourselves  should  eat 
up  my  treasures  and  my  flocks.  Were  ye  so  to  devour  them, 
ere  long  would  some  recompense  be  made,  for  we  would  urge  our 
plea  throughout  the  town,  begging  back  our  substance,  until  all 
should  be  restored.  But  now  without  remedy  are  the  pains  that 
ye  lay  up  in  my  heart." 

So  spake  he  in  wrath,  and  dashed  the  staff  to  the  ground,  and 
brake  forth  in  tears ;  and  pity  fell  on  all  the  people.  Then  all  the 
others  held  their  peace,  and  none  had  the  heart  to  answer  Telem- 
achus  with  hard  words,  but  Antinous  alone  made  answer,  saying : 


34  GENERAL   LITERATURE  [Part  I. 

"  Telemachus,  proud  of  speech  and  unrestrained  in  fury, 
what  is  this  thou  hast  said  to  put  us  to  shame,  and  wouldest 
fasten  on  us  reproach?  Behold  the  fault  is  not  in  the  Achaean 
wooers,  but  in  thine  own  mother,  for  she  is  the  craftiest  of  women. 
For  it  is  now  the  third  year,  and  the  fourth  is  fast  going  by,  since 
she  began  to  deceive  the  minds  of  the  Achseans  in  their  breasts. 
She  gives  hope  to  all,  and  makes  promises  to  every  man,  and 
sends  them  messages,  but  her  mind  is  set  on  other  things.  .  .  . 
But  as  for  thee,  the  wooers  make  thee  answer  thus,  that  thou 
mayest  know  it  in  thine  own  heart,  thou  and  all  the  Achseans ! 
Send  away  thy  mother,  and  bid  her  be  married  to  whomsoever 
her  father  commands,  and  whoso  is  well  pleasing  unto  her.  ..." 

Then  wise  Telemachus  answered  him,  saying:  "Antinous,  I 
may  in  no  wise  thrust  forth  from  the  house,  against  her  will,  the 
woman  that  bare  me,  that  reared  me :  while  as  for  my  father  he 
is  abroad  on  the  earth,  whether  he  be  alive  or  dead.  Moreover 
it  is  hard  for  me  to  make  heavy  restitution  to  Icarius,  as  needs 
I  must,  if  of  mine  own  will  I  send  my  mother  away.  For  I  shall 
have  evil  at  his  hand,  at  the  hand  of  her  father,  and  some  god 
will  give  me  more  besides,  for  my  mother  will  call  down  the  dire 
Avengers  as  she  departs  from  the  house,  and  I  shall  have  blame 
of  men ;  surely  then  I  will  never  speak  this  word.  Nay,  if  your 
own  heart,  even  yours,  is  indignant,  quit  ye  my  halls,  and  busy 
yourselves  with  other  feasts,  eating  your  own  substance,  and  going 
in  turn  from  house  to  house.  But  if  ye  deem  this  a  likelier  and  a 
better  thing,  that  one  man's  goods  should  perish  without  atone- 
ment, then  waste  ye  as  ye  will :  and  I  will  call  upon  the  everlasting 
gods,  if  haply  Zeus  may  grant  that  acts  of  recompense  be  made : 
so  should  ye  hereafter  perish  in  the  halls  without  atonement." 

So  spake  Telemachus,  and  in  answer  to  his  prayer  did  Zeus, 
of  the  far-borne  voice,  send  forth  two  eagles  in  flight,  from  on 
high,  from  the  mountain  crest.  .  .  .  And  the  men  marvelled  at 
the  birds  when  they  had  sight  of  them,  and  pondered  in  their  hearts 
the  things  that  should  come  to  pass.  Yea  and  the  old  man,  the 
lord  Halitherses  son  of  Mastor  spake  among  them,  for  he  excelled 
his  peers  in  knowledge  of  birds,  and  in  uttering  words  of  fate :  .  .  . 
*' Hearken  to  me  now,  ye  men  of  Ithaca,  to  the  word  that  I  shall 
say :  and  mainly  to  the  wooers  do  I  show  forth  and  tell  these 
things,  seeing  that  a  mighty  woe  is  rolling  upon  them.  .  .  .  For 
I  prophesy  not  as  one  unproved,  but  with  sure  knowledge ;  verily, 
I  say,  that  for  him  all  things  now  are  come  to  pass,  even  as  I  told 
him,  what  time  the  Argives  embarked  for  Ilios,  and  with  them 


Chap.  II.]  THE   ODYSSEY   OF   HOMER  35 

went  the  wise  Odysseus.  I  said  that  after  sore  affliction,  with  the 
loss  of  all  his  company,  unknown  to  all,  in  the  twentieth  year  he 
should  come  home.    And  behold,  all  these  things  now  have  an  end.'* 

And  Eurymachus,  son  of  Polybus,  answered  him,  saying :  "  Go 
now,  old  man,  get  thee  home  and  prophesy  to  thine  own  children, 
lest  haply  they  suffer  harm  hereafter  :  but  herein  am  I  a  far  better 
prophet  than  thou.  .  .  .  And  I  myself  will  give  a  word  of  coun- 
sel to  Telemachus  in  presence  of  you  all.  Let  him  command  his 
mother  to  return  to  her  father's  house ;  and  her  kinsfolk  will  furnish 
a  wedding  feast,  and  array  the  gifts  of  wooing,  exceeding  many, 
all  that  should  go  back  with  a  daughter  dearly  beloved.  For  ere 
that,  I  trow,  we  sons  of  the  Achseans  will  not  cease  from  our 
rough  wooing,  since,  come  what  may,  w^e  fear  not  any  man,  no, 
not  Telemachus,  full  of  words  though  he  be,  nor  soothsaying  do 
we  heed,  whereof  thou,  old  man,  pratest  idly,  and  art  hated  yet 
the  more.  His  substance  too  shall  be  woefully  devoured,  nor 
shall  recompense  ever  be  made,  so  long  as  she  shall  put  off  the 
Achseans  in  the  matter  of  her  marriage ;  while  we  in  expectation, 
from  day  to  day,  vie  one  with  another  for  the  prize  of  her  per- 
fection, nor  go  we  after  other  women  whom  it  were  meet  that  we 
should  each  one  wed." 

Then  wise  Telemachus  answered  him,  saying :  "  Eurymachus, 
and  ye  others,  that  are  lordly  wooers,  I  entreat  you  no  more  con- 
cerning this  nor  speak  thereof,  for  the  gods  have  knowledge  of  it 
now  and  all  the  Achseans.  But  come,  give  me  a  swift  ship  and 
twenty  men,  who  shall  accomplish  for  me  my  voyage  to  and  fro. 
...  If  I  shall  hear  news  of  the  life  and  the  returning  of  my 
father,  then  verily  I  may  endure  the  wasting  for  yet  a  year ;  but 
if  I  shall  hear  that  he  is  dead  and  gone,  let  me  then  return  to  my 
own  dear  country,  and  pile  his  mound,  and  over  it  pay  burial 
rites  full  many  as  is  due,  and  I  will  give  my  mother  to  a  husband." 

BOOK  III 

Nestor  entertains  Telemachus  at  Pylos  and  tells  him  how  the  Greeks 
departed  from  Troy ;    and  sends  him  for  further  information  to  Sparta. 

[Telemachus].  .  .  .  "But  now  I  would  question  Nestor,  and 
ask  him  of  another  matter,  as  one  who  above  all  men  knows 
judgments  and  wisdom :  for  thrice,  men  say,  he  hath  been  king 
through  the  generations  of  men ;  yea,  like  an  immortal  he  seems 
to  me  to  look  upon.  ..." 

•I*  5JC  JjC  5JC  JjC  JjC  S|C 


36  GENERAL   LITERATURE  [Part  I. 

So  soon  as  early  Dawn  shone  forth,  the  rosy-fingered,  Nestor 
of  Gerenia,  lord  of  chariots,  gat  him  up  from  his  bed,  and  he  went 
forth  and  sat  him  down  upon  the  smooth  stones,  which  were 
before  his  lofty  doors,  all  polished,  white  and  glistening,  whereon 
Neleus  sat  of  old,  in  counsel  the  peer  of  the  gods.  .  .  .  And 
about  him  his  sons  were  gathered  and  come  together,  issuing 
from  their  chambers,  Echephron  and  Stratius,  and  Perseus  and 
Aretus  and  the  godlike  Thrasymedes.  And  sixth  and  last  came 
the  hero  Peisistratus.  And  they  led  godlike  Telemachus  and  set 
him  by  their  side,  and  Nestor  of  Gerenia,  lord  of  chariots,  spake 
first  among  them.  .  .  . 

BOOK  IV 

Telemaehus's  entertainment  at  Sparta,  where  Menelaus  tells  him  what 
befell  many  of  the  Greeks  on  their  return ;  that  Odysseus  was  with  Ca- 
lypso in  the  isle  Ogygia,  as  he  was  told  by  Proteus. 

And  they  came  to  Lacedsemon  lying  low  among  the  caverned 
hills,  and  drave  to  the  dwelling  of  renowned  Menelaus.  Him 
they  found  giving  a  feast  in  his  house  to  many  friends  of  his  kin, 
a  feast  for  the  wedding  of  his  noble  son  and  daughter.  His 
daughter  he  was  sending  to  the  son  of  Achilles,  cleaver  of  the 
ranks  of  men,  for  in  Troy  he  first  had  promised  and  covenanted 
to  give  her,  and  now  the  gods  were  bringing  about  their  marriage. 
So  now  he  was  speeding  her  on  her  way  with  chariot  and  horses, 
to  the  famous  city  of  the  Myrmidons,  among  whom  her  lord  bare 
rule.  And  for  his  son  he  was  bringing  to  his  home  the  daughter 
of  Alector  out  of  Sparta,  for  his  well-beloved  son,  strong  Mega- 
penthes,  born  of  a  slave  woman,  for  the  gods  no  more  showed 
promise  of  seed  to  Helen,  from  the  day  that  she  bare  a  lovely  child, 
Hermione,  as  fair  as  golden  Aphrodite.  So  they  were  feasting 
through  the  great  vaulted  hall,  the  neighbours  and  the  kinsmen 
of  renowned  Menelaus,  making  merry ;  and  among  them  a  divine 
minstrel  was  singing  to  the  lyre,  and  as  he  began  the  song  two 
tumblers  in  the  company  whirled  through  the  midst  of  them. 


[Menelaus].  "Taste  ye  food  and  be  glad,  and  thereafter  when 
ye  have  supped,  we  will  ask  what  men  ye  are;  for  the  blood  of 
your  parents  is  not  lost  in  you,  but  ye  are  of  the  line  of  men  that 
are  sceptred  kings,  the  fosterlings  of  Zeus;  for  no  churls  could 
beget  sons  like  you." 

So  spake  he,  and  took  and  set  before  them  the  fat  ox-chine 


Chap.  II.]  THE  ODYSSEY  OF  HOMER  37 

roasted,  which  they  had  given  him  as  his  own  mess  by  way  of 
honour.  And  they  stretched  forth  their  hands  upon  the  good 
cheer  set  before  them.  Now  when  they  had  put  from  them  the 
desire  of  meat  and  drink  Telemachus  spake  to  the  son  of  Nestor, 
holding  his  head  close  to  him,  that  those  others  might  not  hear : 

"  Son  of  Nestor,  delight  of  my  heart,  mark  the  flashing  of  bronze 
through  the  echoing  halls,  and  the  flashing  of  gold  and  of  amber 
and  of  silver  and  of  ivory.  Such  like,  methinks,  is  the  court  of 
Olympian  Zeus  within,  for  the  world  of  things  that  are  here; 
wonder  comes  over  me  as  I  look  thereon." 

And  as  he  spake  Menelaus  of  the  fair  hair  was  ware  of  him, 
and  uttering  his  voice  spake  to  them  winged  words : 

"Children  dear,  of  a  truth  no  one  of  mortal  men  may  contend 
with  Zeus,  for  his  mansions  and  his  treasures  are  everlasting : 
but  of  men  there  may  be  who  will  vie  with  me  in  treasure,  or 
there  may  be  none.  Yea,  for  after  many  a  woe  and  wanderings 
manifold,  I  brought  my  wealth  home  in  ships,  and  in  the  eighth 
year  came  hither.  I  roamed  over  Cyprus  and  Phoenicia  and 
Egypt,  and  reached  the  ^Ethiopians  and  Sidonians  and  Erembi 
and  Libya,  where  lambs  are  horned  from  the  birth.  For  there 
the  ewes  yean  thrice  within  the  full  circle  of  a  year ;  there  neither 
lord  nor  shepherd  lacketh  aught  of  cheese  or  flesh  or  of  sweet 
milk,  but  ever  the  flocks  yield  store  of  milk:  continual.  While  I 
was  yet  roaming  in  those  lands,  gathering  much  livelihood,  mean- 
time another  slew  my  brother  privily,  at  unawares,  by  the  guile 
of  his  accursed  wife.  Thus,  look  you,  I  have  no  joy  of  my  lord- 
ship among  these  my  possessions :  and  ye  are  like  to  have  heard 
hereof  from  your  fathers,  whosoever  they  be,  for  I  have  suffered 
much  and  let  a  house  go  to  ruin  that  was  stablished  fair,  and 
had  in  it  much  choice  substance.  I  would  that  I  had  but  a  third 
part  of  those  my  riches,  and  dwelt  in  my  halls,  and  that  those 
men  were  yet  safe,  who  perished  of  old  in  the  wide  land  of  Troy, 
far  from  Argos,  the  pastureland  of  horses.  ..." 


[Menelaus  repeats  the  story  of  the  death  of  Agamemnon,  his 
brother,  as  told  by  Proteus].  "  But  now  when  he  was  like  soon 
to  reach  the  steep  mount  of  Malea,  lo,  the  storm  wind  snatched 
him  away  and  bore  him  over  the  teeming  deep,  making  great 
moan,  to  the  border  of  the  country  where  of  old  Thyestes  dwelt, 
but  now  iEgisthus  abode  there,  the  son  of  Thyestes.  But  when 
thence  too  there  showed  a  good  prospect  of  safe  returning,  and 


38  GENERAL   LITERATURE  [Part  I. 

the  gods  changed  the  wind  to  a  fair  gale,  and  they  had  reached 
home,  then  verily  did  Agamemnon  set  foot  with  joy  upon  his 
country's  soil,  and  as  he  touched  his  own  land  he  kissed  it,  and 
many  were  the  hot  tears  he  let  fall,  for  he  saw  his  land  and  was 
glad.  And  it  was  so  that  the  watchman  spied  him  from  his 
tower,  the  watchman  whom  crafty  ^gisthus  had  led  and  posted 
there,  promising  him  for  a  reward  two  talents  of  gold.  Now  he 
kept  watch  for  the  space  of  a  year,  lest  Agamemnon  should  pass 
by  him  when  he  looked  not,  and  mind  him  of  his  wild  prowess. 
So  he  went  to  the  house  to  bear  the  tidings  to  the  shepherd  of  the 
people.  And  straightway  iEgisthus  contrived  a  cunning  treason. 
He  chose  out  twenty  of  the  best  men  in  the  township,  and  set  an 
ambush,  and  on  the  further  side  of  the  hall  he  commanded  to 
prepare  a  feast.  Then  with  chariot  and  horses  he  w^ent  to  bid  to 
the  feast  Agamemnon,  shepherd  of  the  people ;  but  caitiff  thoughts 
were  in  his  heart.  He  brought  him  up  to  his  house,  all  unwitting, 
of  his  doom,  and  when  he  had  feasted  him  slew  him,  as  one  slayeth 
an  ox  at  the  stall.  And  none  of  the  company  of  Atreides  that 
were  of  his  following  were  left,  nor  any  of  the  men  of  iEgisthus, 
but  they  were  all  killed  in  the  halls." 

BOOK  V 

The  Gods  in  council  command  Calypso  by  Hermes  to  send  away  Odysseus 
on  a  raft  of  trees ;  and  Poseidon,  returning  from  Ethiopia  and  seeing 
him  on  the  coast  of  Phaeacia,  scattered  his  raft ;  and  how  by  the  help  of 
Ino  he  was  thrown  ashore,  and  slept  on  a  heap  of  dry  leaves  till  the  next 
day. 


BOOK  VI 

Nausicaa  going  to  a  river  near  that  place  to  wash  the  clothes  of  her 
father,  mother,  and  brethren,  while  the  clothes  were  drying  played  with 
her  maids  at  ball ;  and  Odysseus  coming  forth  is  fed  and  clothed,  and  led 
on  his  way  to  the  house  of  her  father,  King  Alcinous. 


BOOK  VII 

Odysseus  being  received  at  the  house  of  the  king  Alcinous,  the  queen 
after  supper,  taking  notice  of  his  garments,  gives  him  occasion  to  relate 
his  passage  thither  on  the  raft.  Alcinous  promises  him  a  convoy  for  the 
morrow. 


THE    ODYSSEY    OF   HOMER  39 


BOOK    VIII 


The  next  day's  entertainment  of  Odysseus,  where  he  sees  them  contend 
in  wrestling  and  other  exercises,  and  upon  provocation  took  up  a  greater 
stone  than  that  which  they  were  throwing,  and  overthrew  them  all.  Al- 
cinous  and  the  lords  give  him  presents.  And  how  the  king  asked  his 
name,  his  country,  and  his  adventures. 


Then  it  was  that  goodly  Odysseus  spake  unto  Alcinous  :  "  My 
Lord  Alcinous,  most  notable  among  all  the  people,  thou  didst 
boast  thy  dancers  to  be  the  best  in  the  world,  and  lo,  thy  words 
are  fulfilled ;   I  wonder  as  I  look  on  them." 

So  spake  he,  and  the  mighty  king  Alcinous  rejoiced  and  spake 
at  once  among  the  Phseacians,  masters  of  the  oar : 

"Hearken  ye,  captains  and  counsellors  of  the  Phseacians,  this 
stranger  seems  to  me  a  wise  man  enough.  Come  then,  let  us  give 
him  a  stranger's  gift,  as  is  meet.  Behold,  there  are  twelve  glorious 
princes  who  rule  among  this  people  and  bear  sway,  and  I  myself 
am  the  thirteenth.  Now  each  man  among  you  bring  a  fresh 
robe  and  a  doublet,  and  a  talent  of  fine  gold,  and  let  us  speedily 
carry  all  these  gifts  together,  that  the  stranger  may  take  them  in 
his  hands,  and  go  to  supper  with  a  glad  heart.  As  for  Euryalus 
let  him  yield  amends  to  the  man  himself  with  soft  speech  and 
with  a  gift,  for  his  was  no  gentle  saying." 

So  spake  he,  and  they  all  assented  thereto,  and  would  have  it 
so.  And  each  one  sent  forth  his  henchman  to  fetch  his  gift,  and 
Euryalus  answered  the  king  and  spake,  saying : 

"My  lord  Alcinous,  most  notable  among  all  the  people,  I  will 
make  atonement  to  thy  guest  according  to  thy  word.  I  will 
give  him  a  hanger  all  of  bronze,  with  a  silver  hilt  thereto,  and  a 
sheath  of  fresh-sawn  ivory  covers  it  about,  and  it  shall  be  to  him 
a  thing  of  price." 


BOOK  IX 

Odysseus  relates,  first,  what  befell  him  amongst  the  Cicones  at  Ismarus  ; 
secondly,  amongst  the  Lotophagi ;  thirdly,  how  he  was  used  by  the  Cyclops 
Polyphemus. 


"...  Thence  we  sailed  onward  stricken  at  heart.  And  we 
came  to  the  land  of  the  Cyclopes,  a  froward  and  a  lawless  folk, 
who  trusting  to  the  deathless  gods  plant  not  aught  with  their 


40  GENERAL   LITERATURE  [Part  I. 

hands,  neither  plough :  but,  behold,  all  these  things  spring  for 
them  in  plenty,  unsown  and  untilled,  wheat,  and  barley,  and 
vines,  which  bear  great  clusters  of  the  juice  of  the  grape,  and  the 
rain  of  Zeus  gives  them  increase.  These  have  neither  gatherings 
for  council  nor  oracles  of  law,  but  they  dwell  in  hollow  caves  on 
the  crests  of  the  high  hills,  and  each  one  utters  the  law  to  his 
children  and  his  wives,  and  they  reck  not  one  of  another.  .  .  . 

"Now  when  we  had  come  to  the  land  that  lies  hard  by,  we 
saw  a  cave  on  the  border  near  to  the  sea,  lofty  and  roofed  over  with 
laurels,  and  there  many  flocks  of  sheep  and  goats  were  used  to 
rest.  And  about  it  a  high  outer  court  was  built  with  stones,  deep 
bedded,  and  with  tall  pines  and  oaks  with  their  high  crown  of  leaves. 
And  a  man  was  wont  to  sleep  therein,  of  monstrous  size,  who 
shepherded  his  flocks  alone  and  afar,  and  was  not  conversant 
with  others,  but  dwelt  apart  in  lawlessness  of  mind.  Yea,  for  he 
was  a  monstrous  thing  and  fashioned  marvellously,  nor  was  he 
like  to  any  man  that  lives  by  bread,  but  like  a  wooded  peak  of  the 
towering  hills,  which  stands  out  apart  and  alone  from  others. 

".  .  .  .  Now  I  had  with  me  a  goat  skin  of  the  dark  wine  and 
sweet,  which  Maron,  son  of  Euanthes,  had  given  me,  the  priest 
of  Apollo,  the  god  that  watched  over  Ismarus.  And  he  gave  it, 
for  that  we  had  protected  him  with  his  wife  and  child  reverently ; 
for  he  dwelt  in  a  thick  grove  of  Phoebus  Apollo.  .  .  . 

"With  this  wine  I  filled  a  great  skin,  and  bare  it  with  me,  and 
corn  too  I  put  in  a  wallet,  for  my  lordly  spirit  straightway  had  a 
hoding  that  a  man  would  come  to  me,  a  strange  man,  clothed  in 
mighty  strength,  one  that  knew  neither  dooms,  nor  ordinances  of 
law." 

4e  4e  ♦  4c  *  *  * 


BOOK  X 

Odysseus,  his  entertainment  by  ^olus,  of  whom  he  received  a  fair 
ivind  for  the  present,  and  all  the  rest  of  the  winds  tied  up  in  a  bag ;  which 
his  men  untying,  flew  out,  and  carried  him  back  to  iEolus,  who  refused 
to  receive  him.  His  adventure  at  Lestrygonia  with  Antiphates,  where 
of  twelve  ships  he  lost  eleven,  men  and  all.  How  he  went  thence  to  the 
Isle  of  ^a,  where  half  of  his  men  were  turned  by  Circe  into  swine,  and 
how  he  went  himself,  and  by  the  help  of  Hermes  recovered  them  and 
stayed  with  Circe  a  year. 

"Then  we  came  to  the  isle  iEolian,  where  dwelt  ^olus,  son  of 
Hippotas,  dear  to  the  deathless  gods,  in  a  floating  island,  and  all 
about  it  is  a  wall  of  bronze  unbroken,  and  the  cliff  runs  up  sheer 
from  the  sea.     His  twelve  children  too  abide  there  in  his  halls. 


^^x 


AP.  II.]  THE    ODYSSEY    OF    HOMER  41 

X  daughters  and  six  lusty  sons ;  and,  behold,  he  gave  his  daugh- 
ters to  his  sons  to  wife.  And  they  feast  evermore  by  their  dear 
father  and  their  kind  mother,  and  dainties  innumerable  lie  ready 
to  their  hands.  .  .  .'' 

BOOK  XI 

Odysseus,  his  descent  into  hell,  and  discourses  with  the  ghosts  of  the 
deceased  heroes. 


"There  then  I  saw  Minos,  glorious  son  of  Zeus,  wielding  a 
golden  sceptre,  giving  sentence  from  his  throne  to  the  dead, 
while  they  sat  and  stood  around  the  prince,  asking  his  dooms 
through  the  wide-gated  house  of  Hades." 

BOOK  XII 

Odysseus,  his  passage  by  the  Sirens,  and  by  Scylla  and  Charybdis. 
The  sacrilege  committed  by  his  men  in  the  isle  Thrinacia.  The  destruc- 
tion of  his  ships  and  men.  How  he  swam  on  a  plank  nine  days  together 
and  came  to  Ogygia,  where  he  stayed  seven  years  with  Calypso. 


BOOK  XIII 

Odysseus,  sleeping,  is  set  ashore  at  Ithaca  by  the  Phaeacians,  and 
waking  knows  it  not.  Pallas,  in  the  form  of  a  shepherd,  helps  to  hide 
his  treasure.  The  ship  that  conveyed  him  is  turned  into  a  rock,  and 
Odysseus  by  Pallas  is  instructed  what  to  do,  and  transformed  into  an  old 
beggarman. 

.  .  .  Then  Athene  came  nigh  him  in  the  guise  of  a  young 
man,  the  herdsman  of  a  flock,  a  young  man  most  delicate,  such  as 
are  the  sons  of  kings. 

.  .  .  And  he  [Odysseus]  uttered  his  voice  and  spake  unto 
her  winged  words ;  yet  he  did  not  speak  the  truth,  but  took  back 
the  word  that  was  on  his  lips,  for  quick  and  crafty  was  his  wit 
within  his  breast : 

"  Of  Ithaca  have  I  heard  tell,  even  in  broad  Crete,  far  over  the 
seas;  and  now  have  I  come  hither  myself  with  these  my  goods. 
And  I  left  as  much  again  with  my  children,  when  I  turned  outlaw 
for  the  slaying  of  the  dear  son  of  Idomeneus,  Orsilochus,  swift  of 
foot,  who  in  wide  Crete  was  the  swiftest  of  all  men  that  live  by 
bread.  Now  he  would  have  despoiled  me  of  all  that  booty  of 
Troy,  for  the  which  I  had  endured  pain  of  heart,  in  passing  through 
the  wars  of  men,  and  the  grievous  waves  of  the  sea,  for  this  cause 


42  GENERAL   LITERATURE  [Part  I. 

that  I  would  not  do  a  favour  to  his  father,  and  make  me  his 
squire  in  the  land  of  the  Trojans,  but  commanded  other  fellow- 
ship of  mine  own.  So  I  smote  him  with  a  bronze-shod  spear  as 
he  came  home  from  the  field,  lying  in  ambush  for  him  by  the  way- 
side, with  one  of  my  companions.  And  dark  midnight  held  the 
heavens,  and  no  man  marked  us,  but  privily  I  took  his  life  away. 
Now  after  I  had  slain  him  with  the  sharp  spear,  straightway  I 
went  to  a  ship  and  besought  the  lordly  Phoenicians,  and  gave 
them  spoil  to  their  hearts'  desire.  I  charged  them  to  take  me  on 
board,  and  land  me  at  Pylos  or  at  goodly  Elis  where  the  Epeans 
bear  rule.  ..." 

BOOK  XIV 

Odysseus,  in  the  form  of  a  beggar,  goes  to  Eiimaeus,  the  master  of 
his  swine,  where  he  is  well  used  and  tells  a  feigned  story,  and  informs  him- 
self of  the  behaviour  of  the  wooers. 

But  Odysseus  fared  forth  from  the  haven  by  the  rough  track, 
up  the  wooded  country  and  through  the  heights,  where  Athene 
had  showed  him  that  he  should  find  the  goodly  swineherd,  who 
cared  most  for  his  substance  of  all  the  thralls  that  goodly  Odysseus 
had  gotten. 


[Odysseus].  "My  friend,  who  was  it  then  that  bought  thee 
with  his  wealth,  a  man  so  exceeding  rich  and  mighty  as  thou 
declarest?  Thou  saidest  that  he  perished  to  get  atonement  for 
Agamemnon ;  tell  me,  if  perchance  I  may  know  him,  being  such 
an  one  as  thou  sayest.  For  Zeus,  methinks,  and  the  other  death- 
less gods  know  whether  I  may  bring  tidings  of  having  seen  him ; 
for  I  have  wandered  far."  .  .  . 

[Eumseus]  ....  "But  come,  old  man,  do  thou  tell  me  of 
thine  own  troubles.  And  herein  tell  me  true,  that  I  may  surely 
know.  Who  art  thou  of  the  sons  of  men,  and  whence?  Where 
is  thy  city,  where  are  they  that  begat  thee  ?  Say  on  what  manner 
of  ship  didst  thou  come,  and  how  did  sailors  bring  thee  to  Ithaca, 
and  who  did  they  avow  them  to  be?  For  in  nowise  do  I  deem 
that  thou  camest  hither  by  land." 

And  Odysseus  of  many  counsels  answered  him  saying  :"...! 
avow  that  I  come  by  lineage  from  wide  Crete,  and  am  the  son  of  a 
wealthy  man.  And  many  other  sons  he  had  born  and  bred  in  the 
halls,  lawful-born  of  a  wedded  wife ;  but  the  mother  that  bare  me 
was  a  concubine  bought  with  a  price.  Yet  Castor  son  of  Hylax,  of 
whose  blood  I  avow  me  to  be,  gave  me  no  less  honour  than  his 


Chap.  II.]  THE   ODYSSEY   OF   HOMER  43 

lawful  sons.  Now  he  at  that  time  got  worship  even  as  a  god  from 
the  Cretans  in  the  land,  for  wealth  and  riches  and  sons  renowned. 
Howbeit  the  fates  of  death  bare  him  away  to  the  house  of  Hades, 
and  his  gallant  sons  divided  among  them  his  living  and  cast  lots 
for  it.  But  to  me  they  gave  a  very  small  gift,  and  assigned  me  a 
dwelling,  and  I  took  unto  me  a  wife,  the  daughter  of  men  that  had 
wide  lands,  by  reason  of  my  valour,  for  that  I  was  no  weakling 
nor  a  dastard ;  but  now  all  my  might  has  failed  me,  yet  even  so  I 
deem  that  thou  mightest  guess  from  seeing  the  stubble  what  the 
grain  has  been,  for  of  trouble  I  have  plenty  and  to  spare.  But 
then  verily  did  Ares  and  Athene, give  me  boldness  and  courage  to 
hurl  through  the  press  of  men,  whensoever  I  chose  the  best  warriors 
for  an  ambush,  sowing  the  seeds  of  evil  for  my  foes ;  no  boding  of 
death  was  ever  in  my  lordly  heart,  but  I  would  leap  out  the  fore- 
most and  slay  with  the  spear  whoso  of  my  foes  was  less  fleet  of 
foot  than  I.  Such  an  one  was  I  in  war,  but  the  labour  of  the  field 
I  never  loved,  nor  home-keeping  thrift,  that  breeds  brave  children, 
but  galleys  with  their  oars  were  dear  to  me,  and  wars  and  polished 
shafts  and  darts  —  baneful  things  whereat  others  use  to  shudder. 
But  that,  methinks,  was  dear  to  me  which  the  god  put  in  my 
heart,  for  divers  men  take  delight  in  divers  deeds.  For  ere  ever 
the  sons  of  the  Achseans  had  set  foot  on  the  land  of  Troy,  I  had 
nine  times  been  a  leader  of  men  and  of  swift-faring  ships  against  a 
strange  people,  and  wealth  fell  ever  to  my  hands.  Of  the  booty  I 
would  choose  out  for  me  all  that  I  craved,  and  much  thereafter 
I  won  by  lot.  So  my  house  got  increase  speedily,  and  thus  I 
waxed  dread  and  honourable  among  the  Cretans.  But  when  Zeus, 
of  the  far-borne  voice,  devised  at  the  last  that  hateful  path  which 
loosened  the  knees  of  many  a  man  in  death,  then  the  people  called 
on  me  and  on  renowned  Idomeneus  to  lead  the  ships  to  Ilios,  nor 
was  there  any  way  whereby  to  refuse,  for  the  people's  voice  bore 
hard  upon  us.  There  we  sons  of  the  Achaeans  warred  for  nine 
whole  years,  and  then  in  the  tenth  year  we  sacked  the  city  of  Priam, 
and  departed  homeward  with  our  ships,  and  a  god  scattered  the 
Achaeans.  But  Zeus,  the  counsellor,  devised  mischief  against  me, 
wretched  nian  that  I  was !  For  one  month  only  I  abode  and  had 
joy  in  my  children  and  my  wedded  wife,  and  all  that  I  had ;  and 
thereafter  my  spirit  bade  me  fit  out  ships  in  the  best  manner  and 
sail  to  Egypt  with  my  godlike  company.  Nine  ships  I  fitted  out 
and  the  host  was  gathered  quickly ;  and  then  for  six  days  my  dear 
company  feasted,  and  I  gave  them  many  victims  that  they  might 
sacrifice  to  the  gods  and  prepare  a  feast  for  themselves.     But  on  the 


44  GENERAL   LITERATURE  [Part  I. 

seventh  day  we  set  sail  from  wide  Crete,  with  a  North  Wind  fresh 
and  fair,  and  Hghtly  we  ran  as  it  were  down  stream,  yea  and  no 
harm  came  to  any  ship  of  mine,  but  we  sat  safe  and  hale,  while  the 
wind  and  pilots  guided  the  barques.  And  on  the  fifth  day  we 
came  to  the  fair-flowing  ^Egyptus,  and  in  the  river  iEgyptus  I 
stayed  my  curved  ships.  Then  verily  I  bade  my  dear  companions 
to  abide  there  by  the  ships  and  to  guard  them,  and  I  sent  forth 
scouts  to  range  the  points  of  outlook.  But  my  men  gave  place  to 
wantonness,  being  the  fools  of  their  own  force,  and  soon  they  fell 
to  wasting  the  fields  of  the  Egyptians,  exceeding  fair,  and  led  away 
their  wives  and  infant  children  and  slew  the  men.  And  the  cry 
came  quickly  to  the  city,  and  the  people  hearing  the  shout  came 
forth  at  the  breaking  of  the  day,  and  all  the  plain  was  filled  with 
footmen  and  chariots  and  with  the  glitter  of  bronze.  And  Zeus, 
whose  joy  is  in  the  thunder,  sent  an  evil  panic  upon  my  company, 
and  none  durst  stand  and  face  the  foe,  for  danger  encompassed 
us  on  every  side.  There  they  slew  many  of  us  with  the  edge  of  the 
sword,  and  others  they  led  up  with  them  alive  to  work  for  them 
perforce.  But  as  for  me,  Zeus  himself  put  a  thought  into  my  heart ; 
would  to  God  that  I  had  rather  died,  and  met  my  fate  there  in 
Egypt,  for  sorrow  was  still  mine  host !  Straightway  I  put  off  my 
well-wrought  helmet  from  my  head,  and  the  shield  from  off  my 
shoulders,  and  I  cast  away  my  spear  from  my  hand,  and  I  came 
over  against  the  chariots  of  the  king,  and  clasped  and  kissed  his 
knees,  and  he  saved  me  and  delivered  me,  and  setting  me  on  his 
own  chariot  took  me  weeping  to  his  home.  Truly  many  an  one 
made  at  me  with  their  ashen  spears,  eager  to  slay  me,  for  verily 
they  were  sore  angered.  But  the  king  kept  them  off  and  had 
respect  unto  the  wrath  of  Zeus,  the  god  of  strangers,  who  chiefly 
hath  displeasure  at  evil  deeds.  So  for  seven  whole  years  I  abode 
with  their  king,  and  gathered  much  substance  among  the  Egyptians, 
for  they  all  gave  me  gifts.  But  when  the  eighth  year  came  in  due 
season,  there  arrived  a  Phoenician  practised  in  deceit,  a  greedy 
knave,  who  had  already  done  much  mischief  among  men.  He 
wrought  on  me  with  his  cunning,  and  took  me  with  him  until  he 
came  to  Phoenicia,  where  was  his  house  and  where  his  treasures 
lay.  There  I  abode  with  him  for  the  space  of  a  full  year.  But 
when  now  the  months  and  days  were  fulfilled,  as  the  year  came 
round  and  the  seasons  returned,  he  set  me  aboard  a  seafaring  ship 
for  Libya  under  colour  as  though  I  was  to  convey  a  cargo  thither 
with  him,  but  his  purpose  was  to  sell  me  in  Libya,  and  get  a  great 
price.  ..." 


Chap.  II.]  THE   ODYSSEiT   OF  HOMER  45 

Then  made  answer  to  him,  swineherd  Eumseus  :  "  Ah !  wretched 
guest,  verily  thou  hast  stirred  my  heart  with  the  tale  of  all  these 
things,  of  thy  sufferings  and  thy  wanderings.  .  .  .  But  now  it  is 
supper-time,  and  would  that  my  fellows  may  speedily  be  at  home^ 
that  we  may  make  ready  a  dainty  supper  within  the  hut." 

Thus  they  spake  one  to  the  other.  And  lo,  the  swine  and  the 
swineherds  drew  nigh.  And  the  swine  they  shut  Up  to  sleep  in 
tlieir  lairs,  and  a  mighty  din  arose  as  the  swine  were  being  stalled. 
Then  the  goodly  swineherd  called  to  his  fellows,  saying  : 

"  Bring  the  best  of  the  swine,  that  I  may  sacrifice  it  for  a  guest  of 
mine  from  a  far  land :  and  we  too  will  have  good  cheer  therewith, 
for  we  have  long  suffered  and  toiled  by  reason  of  the  white-tusked 
swine,  while  others  devour  the  fruit  of  our  labour  without  atone- 
ment." ... 

So  he  spake,  and  made  burnt  offering  of  the  hallowed  parts  to 
the  everlasting  gods,  and  poured  the  dark  wine  for  a  drink  offering, 
and  set  the  cup  in  the  hands  of  Odysseus,  the  waster  of  cities,  and 
sat  down  by  his  own  mess.  And  Mesaulius  bare  them  wheaten 
bread,  a  thrall  that  the  swineherd  had  gotten  all  alone,  while  his 
lord  was  away,  without  the  knowledge  of  his  mistress  and  the  old 
Laertes :  yea  he  had  bought  him  of  the  Taphians  with  his  own 
substance.  So  they  stretched  forth  their  hands  upon  the  good 
cheer  spread  before  them.  Now  after  they  had  put  from  them  the 
desire  of  meat  and  drink,  Mesaulius  cleared  away  the  bread,  and 
they,  now  that  they  had  eaten  enough  of  bread  and  flesh,  were 
moved  to  go  to  rest. 


BOOK  XV 


Pallas  sends  home  Telemachus  from  Lacedaemon  with  the  presents 
given  him  by  Menelaus.     Telemachus  landed,  goes  first    to    Eumaeus. 

Now  so  soon  as  early  Dawn  shone  forth,  the  rosy-fingered,  they 
yoked  the  horses  and  mounted  the  inlaid  car.  And  forth  they 
drave  from  the  gateway  and  the  echoing  gallery.  And  he  touched 
the  horses  with  the  whip  to  start  them,  and  the  pair  flew  onward 
nothing  loth.  And  soon  thereafter  they  reached  the  steep  hold  of 
Pylos.     Then  Telemachus  spake  unto  the  son  of  Nestor,  saying : 

"  Son  of  Nestor,  in  what  wise  mightest  thou  make  me  a  promise 
and  fulfil  my  bidding  ?  For  we  claim  to  be  friends  by  reason  of  our 
fathers'  friendship  from  of  old.     Moreover  we  are  equals  in  age. 


46  GENERAL   LITERATURE  IPart  I. 

and  this  journey  shall  turn  to  our  greater  love.  Take  me  not  hence 
past  my  ship,  O  fosterling  of  Zeus,  but  leave  me  there,  lest  that 
old  man  keep  me  in  his  house  in  my  despite,  out  of  his  eager  kind- 
ness, for  I  must  go  right  quickly  home." 

So  spake  he,  and  the  son  of  Nestor  communed  with  his  own  heart 
how^  he  might  make  promise,  and  duly  fulfil  the  same.  So  as  he 
thought  thereon,  in  this  wise  it  seemed  to  him  best.  He  turned 
back  his  horses  toward  the  swift  ship  and  sea-banks,  and  took 
forth  the  fair  gifts  and  set  them  in  the  hinder  part  of  the  ship,  the 
raiment  and  the  gold  which  Menelaus  gave  him.  And  he  called 
to  Telemachus  and  spake  to  him  winged  words : 

''  Now  climb  the  ship  with  all  haste,  and  bid  all  thy  company  do 
likewise,  ere  I  reach  home  and  bring  the  old  man  word.  For  well 
I  know  in  my  mind  and  heart  that,  being  so  wilful  of  heart,  he  will 
not  let  thee  go,  but  he  himself  will  come  hither  to  bid  thee  to  his 
house,  and  methinks  that  he  will  not  go  back  without  thee;  for 
very  wroth  will  he  be  despite  thine  excuse." 

Thus  he  spake,  and  drave  the  horses  with  the  flowing  manes 
back  to  the  town  of  the  Pylians,  and  came  quickly  to  the  halls. 
And  Telemachus  called  to  his  companions  and  commanded  them, 
saying : 

"Set  ye  the  gear  in  order,  my  friends,  in  the  black  ship,  and  let 
us  climb  aboard  that  we  may  make  way  upon  our  course." 

So  spake  he,  and  they  gave  good  heed  and  hearkened.  Then 
straightway  they  embarked  and  sat  upon  the  benches. 

Thus  was  he  busy  hereat  and  praying  and  making  burnt-offering 
to  Athene,  by  the  stern  of  the  ship,  when  there  drew  nigh  him  one 
from  a  far  country,  that  had  slain  his  man  and  was  fleeing  from  out 
of  Argos.  He  was  a  soothsayer,  and  by  his  lineage  he  came  of 
Melampus,  who  of  old  time  abode  in  Pylos,  mother  of  flocks,  a 
rich  man  and  one  that  had  an  exceeding  goodly  house  among  the 
Pylians,  but  afterward  he  had  come  to  the  land  of  strangers,  fleeing 
from  his  country  and  from  Neleus,  the  great-hearted,  the  proudest 
of  living  men,  who  kept  all  his  goods  for  a  full  year  by  force.  All 
that  time  Melampus  lay  bound  with  hard  bonds  in  the  hafls  of 
Phylacus,  suffering  strong  pains  for  the  sake  of  the  daughter  of 
Neleus,  and  for  the  dread  blindness  of  soul  which  the  goddess,  the 
Erinnys  of  the  dolorous  stroke,  had  laid  on  him.  Howsoever  he 
escaped  his  fate,  and  drave  away  the  lowing  kine  from  Phylace 
to  Pylos,  and  avenged  the  foul  deed  upon  godlike  Neleus,  and 
brought  the  maiden  home  to  his  own  brother  to  wife.  As  for  him, 
he  went  to  a  country  of  other  men,  to  Argos,  the  pastureland  of 


Chap.  II.]  THE    ODYSSEY   OF   HOMER  47 

horses ;  for  there  truly  it  was  ordained  that  he  should  dwell,  bear- 
ing rule  over  many  of  the  Argives.  There  he  wedded  a  wife,  and  * 
builded  him  a  lofty  house,  and  begat  Antiphates  and  Mantius, 
two  mighty  sons.  Now  Antiphates  begat  Oicles,  the  great- 
hearted, and  Oicles  Amphiaraus,  the  rouser  of  the  host,  whom 
Zeus,  lord  of  the  aegis,  and  Apollo  loved  with  all  manner  of  love. 
Yet  he  reached  not  the  threshold  of  old  age,  but  died  in  Thebes 
by  reason  of  a  woman^s  gifts.  And  the  sons  born  to  him  were 
Alcmseon  and  Amphilochus.  But  Mantius  begat  Polypheides 
and  Cleitus ;  but  it  came  to  pass  that  the  golden-throned  Dawn 
snatched  away  Cleitus  for  his  very  beauty's  sake,  that  he  might 
dwell  with  the  Immortals. 

And  Apollo  made  the  high-souled  Polypheides  a  seer,  far  the 
chief  of  human  kind,  Amphiaraus  being  now  dead.  He  removed 
his  dwelling  to  Hypheresia,  being  angered  with  his  father,  and  here 
he  abode  and  prophesied  to  all  men. 

This  man's  son  it  was,  Theoclymenus  by  name,  that  now  drew 
nigh  and  stood  by  Telemachus.  And  he  found  him  pouring  a 
drink-offering  and  praying  by  the  swift  black  ship,  and  uttering  his 
voice  he  spake  to  him  winged  words : 

"Friend,  since  I  find  thee  making  burnt-offering  in  this  place,  I 
pray  thee,  by  thine  offerings  and  by  the  god,  and  thereafter  by 
thine  own  head,  and  in  the  name  of  the  men  of  thy  company  answer 
my  question  truly  and  hide  it  not.  Who  art  thou  of  the  sons  of 
men  and  whence  ?  Where  is  thy  city,  where  are  they  that  begat 
thee?" 

And  wise  Telemachus  answered  him,  saying:  ''Yea,  now, 
stranger,  I  will  plainly  tell  thee  all.  Of  Ithaca  am  I  by  lineage,  and 
my  father  is  Odysseus,  if  ever  such  an  one  there  was,  but  now  hath 
he  perished  by  an  evil  fate.  Wherefore  I  have  taken  my  company 
and  a  black  ship,  and  have  gone  forth  to  hear  word  of  my  father 
that  has  been  long  afar." 

Then  godlike  Theoclymenus  spake  to  him  again:  "Even  so  I 
too  have  fled  from  my  country,  for  the  manslaying  of  one  of  mine 
own  kin.  And  many  brethren  and  kinsmen  of  the  slain  are  in 
Argos,  the  pastureland  of  horses,  and  rule  mightily  over  the 
Achseans.  Wherefore  now  am  I  an  exile  to  shun  death  and  black 
fate  at  their  hands,  for  it  is  my  doom  yet  to  wander  among  men. 
Now  set  me  on  board  ship,  since  I  supplicate  thee  in  my  flight,  lest 
they  slay  me  utterly;   for  methinks  they  follow  hard  after  me." 

And  wise  Telemachus  answered  him,  saying:  "Surely  I  will 
not  drive  thee  away  from  our  good  ship,  if  thou  art  fain  to  come. 


48  GENERAL   LITERATURE  [Part  I. 

Follow  thou  with  us  then,  and  in  Ithaca  thou  shalt  be  welcome 
to  such  things  as  we  have."  ... 


Now  Odysseus  and  the  goodly  swineherd  were  supping  in  the 
hut,  and  the  other  men  sat  at  meat  with  them.  .  .  . 

[Odysseus]  "...  But  behold  now,  since  thou  stayest  me  here,, 
and  biddest  me  wait  his  coming,  tell  me  of  the  mother  of  divine 
Odysseus,  and  of  the  father  whom  at  his  departure  he  left  behind 
him  on  the  threshold  of  old  age ;  are  they,  it  may  be,  yet  alive 
beneath  the  sunlight,  or  already  dead  and  within  the  house  of 
Hades?'' 

Then  spake  to  him  the  swineherd,  a  master  of  men  :  *'  Yea  now, 
stranger,  I  will  plainly  tell  thee  all.  Laertes  yet  lives,  and  prays 
evermore  to  Zeus  that  his  life  may  waste  from  out  his  limbs  within 
his  halls.  For  he  has  wondrous  sorrow  for  his  son  that  is  far 
away,  and  for  the  wedded  lady  his  wise  wife,  whose  death  afflicted 
him  in  chief  and  brought  him  to  old  age  before  his  day.  Now  she 
died  of  very  grief  for  her  son  renowned,  by  an  evil  death,  so  may 
no  man  perish  who  dwells  here  and  is  a  friend  to  me  in  word  and 
deed  !  So  long  as  she  was  on  earth,  though  in  much  sorrow,  I  was 
glad  to  ask  and  enquire  concerning  her,  for  that  she  herself  had 
reared  me  along  with  long-robed  Ctimene,  her  noble  daughter,  the 
youngest  of  her  children.  With  her  I  was  reared,  and  she  honoured 
me  little  less  than  her  own.  But  when  we  both  came  to  the 
flower  of  age,  thereupon  they  sent  her  to  Same,  and  got  a  great 
bride-price;  but  my  lady  clad  me  in  a  mantle  and  a  doublet, 
raiment  very  fair,  and  gave  me  sandals  for  my  feet  and  sent  me 
forth  to  the  field,  and  right  dear  at  heart  she  held  me.  .  .  . " 

And  Odysseus  of  many  counsels  answered  him  saying:  "Ah, 
Eumseus,  how  far  then  didst  thou  wander  from  thine  own  country 
and  thy  parents  while  as  yet  thou  wast  but  a  child !  But  come,, 
declare  me  this  and  plainly  tell  it  all.  Was  a  wide-way ed  town  of 
men  taken  and  sacked,  wherein  dwelt  thy  father  and  thy  lady 
mother,  or  did  unfriendly  men  find  thee  lonely,  tending  sheep  or 
cattle,  and  shipped  thee  thence,  and  sold  thee  into  the  house  of  thy 
master  here,  who  paid  for  thee  a  goodly  price?" 

Then  spake  to  him  the  swineherd,  a  master  of  men  :  "Stranger, 
since  thou  askest  and  questionest  me  hereof,  give  heed  now  in 
silence  and  make  merry,  and  abide  here  drinking  wine.  .  .  . 

"There  is  a  certain  isle  called  Syria,  if  haply  thou  hast  heard  tell 
of  it,  over  above  Ortygia,  and  there  are  the  turning-places  of  the 


i 


Chap.  II.]  THE   ODYSSEY   OF   HOMER  49 


sun.  It  is  not  very  great  in  compass,  though  a  goodly  isle,  rich  in 
herds,  rich  in  flocks,  with  plenty  of  corn  and  wine.  Dearth  never 
enters  the  land,  and  no  hateful  sickness  falls  on  wretched  mortals. 
But  when  the  tribes  of  men  grow  old  in  that  city,  then  comes 
Apollo  of  the  silver  bow,  with  Artemis,  and  slays  them  with  the 
visitation  of  his  gentle  shafts.  In  that  isle  are  two  cities,  and  the 
whole  land  is  divided  between  them,  and  my  father  was  king  over 
the  twain,  Ctesius  son  of  Ormenus,  a  man  like  to  the  Immortals. 

"Thither  came  the  Phoenicians,  mariners  renowned,  greedy 
merchant  men,  with  countless  gauds  in  a  black  ship.  Now  in  my 
father's  house  was  a  Phoenician  woman,  tall  and  fair  and  skilled 
in  bright  handiwork;  this  woman  the  Phoenicians  with  their 
sleights  beguiled.  .  .  .  Then  he  asked  her  who  she  was  and  whence 
she  came,  and  straightway  she  showed  him  the  lofty  home  of  my 
father,  saying : 

'  From  out  of  Sidon  I  avow  that  I  come,  a  land  rich  in  bronze, 
and  I  am  the  daughter  of  Arybas,  the  deeply  wealthy.  But 
Taphians,  who  were  sea-robbers,  laid  hands  on  me  and  snatched  me 
away  as  I  came  in  from  the  fields,  and  brought  me  hither  and  sold 
me  into  the  house  of  my  master,  who  paid  for  me  a  goodly 
price.' 

"  Then  the  man  answered  :  *  Say,  wouldst  thou  now  return  home 
with  us,  that  thou  mayst  look  again  on  the  lofty  house  of  thy  father 
and  mother  and  on  their  faces?  For  truly  they  yet  live,  and 
have  a  name  for  wealth.' 

"Then  the  woman  answered  him  and  spake,  saying  :  *Even  this 
may  well  be,  if  ye  sailors  will  pledge  me  an  oath  to  bring  me  home 
in  safety.' 

"So  spake  she,  and  they  all  swore  thereto  as  she  bade  them. 
Now  when  they  had  sworn  and  done  that  oath,  again  the  woman 
spake  among  them  and  answered,  saying : 

*  Hold  your  peace  now,  and  let  none  of  your  fellows  speak  to  me 
and  greet  me,  if  they  meet  me  in  the  street,  or  even  at  the  well, 
lest  one  go  and  tell  it  to  the  old  man  at  home,  and  he  suspect  some- 
what and  bind  me  in  hard  bonds  and  devise  death  for  all  of  you. 
But  keep  ye  the  matter  in  mind,  and  speed  the  purchase  of  your 
homeward  freight.  And  when  your  ship  is  freighted  with  stores, 
let  a  message  come  quickly  to  me  at  the  house ;  for  I  will  likewise 
bring  gold,  all  that  comes  under  my  hand.  Yea  and  there  is  an- 
other thing  that  I  would  gladly  give  for  my  fare.  I  am  nurse  to  the 
child  of  my  lord  in  the  halls,  a  most  cunning  little  boy,  that  runs 
out  and  abroad  with  me.     Him  would  I  bring  on  board  ship,  and 


50  GENERAL   LITERATURE  [Pabt  I. 

he  should  fetch  you  a  great  price,  wheresoever  ye  take  him  for 
sale  among  men  of  strange  speech.' 

"Therewith  she  went  her  way  to  the  fair  halls.  But  they  abode 
among  us  a  whole  year,  and  got  together  much  wealth  in  their 
hollow  ship.  And  when  their  hollow  ship  was  now  laden  to  depart, 
they  sent  a  messenger  to  tell  the  tidings  to  the  woman.  There 
came  a  man  versed  in  craft  to  my  father's  house,  with  a  golden 
chain  strung  here  and  there  with  amber  beads.  Now  the  maidens 
in  the  hall  and  my  lady  mother  were  handhng  the  chain  and  gazing 
on  it,  and  offering  him  their  price ;  but  he  had  signed  silently  to  the 
woman,  and  therewithal  gat  him  away  to  the  hollow  ship.  Then 
she  took  me  by  the  hand  and  led  me  forth  from  the  house.  And  at 
the  vestibule  of  the  house  she  found  the  cups  and  the  tables  of  the 
guests  that  had  been  feasting,  who  were  in  waiting  on  my  father. 
They  had  gone  forth  to  the  session  and  the  place  of  parley  of  the 
people.  And  she  straightway  hid  three  goblets  in  her  bosom,  and 
bare  them  away,  and  I  followed  in  my  innocence.  Then  the  sun 
sank  and  all  the  ways  were  darkened.  And  we  went  quickly  and 
came  to  the  good  haven,  where  was  the  swift  ship  of  the  Phoeni- 
cians. So  they  climbed  on  board  and  took  us  up  with  tliem,  and 
sailed  over  the  wet  ways,  and  Zeus  sent  us  a  favouring  wind.  For 
six  days  we  sailed  by  day  and  night  continually ;  but  when  Zeus, 
son  of  Cronos,  added  the  seventh  day  thereto,  then  Artemis,  the 
archer,  smote  the  woman  that  she  fell,  as  a  sea-swallow  falls,  with 
a  plunge  into  the  hold.  And  they  cast  her  forth  to  be  the  prey  of 
seals  and  fishes,  but  I  was  left  stricken  at  heart.  And  wind  and 
water  bare  them  and  brought  them  to  Ithaca,  where  Laertes 
bought  me  with  his  possessions.  And  thus  it  chanced  that  mine 
eyes  beheld  this  land."  ... 

BOOK  XVI 

Telemaclius  sends  Eumaeus  to  the  city  to  tell  his  mother  of  his  return. 
And  how,  in  the  meantime,  Odysseus  discovers  himself  to  his  son. 

*r  3|5  3|C  3|C  3|C  ^  5|C 

BOOK  XVII 
Telemachus  relates  to  his  mother  what  he  had  heard  at  Pylos  and  Sparta. 


BOOK  XVIII 

The  fighting  at  fists  of  Odysseus  with  Irus.  His  admonitions  to  Am- 
phinomus.  Penelope  appears  before  the  wooers,  and  draws  presents 
from  them. 


Chap.  II,]  THE   ODYSSEY   OF   HOMER  51 

Now  Athene  would  in  no  wise  suffer  the  lordly  wooers  to  abstain 
from  biting  scorn,  that  the  pain  might  sink  yet  the  deeper  into  the 
heart  of  Odysseus,  son  of  Laertes.  .  .  . 

He  [Eurymachus,  leader  of  the  wooers]  spake,  and  withal  ad- 
dressed Odysseus,  waster  of  cities:  ^^ Stranger,  wouldest  thou  in- 
deed be  my  hireling,  if  I  would  take  thee  for  my  man,  at  an  upland 
farm,  and  thy  wages  shall  be  assured  thee,  and  there  shalt  thou 
gather  stones  for  walls  and  plant  tall  trees  ?  There  would  I  pro- 
vide thee  bread  continual,  and  clothe  thee  with  raiment,  and  give 
thee  shoes  for  thy  feet.  ..." 

BOOK  XIX 

Telemachus  removes  the  arms  out  of  the  hall.  Odysseus  discourseth 
with  Penelope,  and  is  known  by  his  nurse,  but  concealed.  And  the  hunt- 
ing of  the  boar  upon  that  occasion  related. 

BOOK  XX 
Pallas  and  Odysseus  consult  of  the  killing  of  the  wooers. 

BOOK  XXI 

Penelope  bringeth  forth  her  husband's  bow,  which  the  suitors  could 
not  bend,  but  was  bent  by  Odysseus. 

.  .  .  And  she  betook  her,  with  her  hand-maidens,  to  the 
treasure-chamber  in  the  uttermost  part  of  the  house,  where  lay  the 
treasures  of  her  lord,  bronze  and  gold  and  well-wrought  iron.  And 
there  lay  the  back-bent  bow  and  the  quiver  for  the  arrows,  and 
many  shafts  were  therein,  winged  for  death,  gifts  of  a  friend  of 
Odysseus,  that  met  with  him  in  Lacedsemon,  Iphitus  son  of  Eurytus, 
a  man  like  to  the  gods.  These  twain  fell  in  with  one  another  in 
Messene,  in  the  house  of  wise  Ortilochus.  Now  Odysseus  had  gone 
thither  to  recover  somewhat  that  was  owing  to  him  from  all  the 
people,  for  the  men  of  Messene  had  lifted  three  hundred  sheep  in 
benched  ships  from  out  of  Ithaca,  with  the  shepherds  of  the 
flock.  In  quest  of  these  it  was  that  Odysseus  went  on  a  far  em- 
bassy, being  yet  a  lad  ;  for  his  father  and  the  other  elders  sent  him 
forth.  Moreover,  Iphitus  came  thither  in  his  search  for  twelve 
brood  mares,  which  he  had  lost,  with  sturdy  mules  at  the  teat. 
These  same  it  was  that  brought  him  death  and  destiny  in  the 
latter  end,  when  he  came  to  the  child  of  Zeus,  hardy  of  heart,  the 


52  GENERAL   LITERATURE  [Part  I. 

man  Heracles,  that  had  knowledge  of  great  adventures,  who 
smote  Iphitus  though  his  guest  in  his  house,  in  his  frowardness, 
and  had  no  regard  for  the  vengeance  of  the  gods,  nor  for  the  table 
which  he  spread  before  him ;  for  after  the  meal  he  slew  him,  his 
guest  though  he  was,  and  kept  for  himself  in  the  halls,  the  horses 
strong  of  hoof.  After  these  was  Iphitus  asking,  when  he  met  with 
Odysseus,  and  he  gave  him  the  bow,  which  of  old  great  Eurytus 
bare  and  had  left  at  his  death  to  his  son  in  his  lofty  house.  And 
Odysseus  gave  Iphitus  a  sharp  sword  and  a  mighty  spear,  for  the 
beginning  of  a  loving  friendship  ;  but  never  had  they  acquaintance 
one  of  another  at  the  board  ;  ere  that  might  be,  the  son  of  Zeus  slew 
Iphitus  son  of  Eurytus,  a  man  like  to  the  immortals,  the  same  that 
gave  Odysseus  the  bow.  But  goodly  Odysseus  would  never  take 
it  with  him  on  the  black  ships,  as  he  went  to  the  wars,  but  the  bow 
was  laid  by  at  home  in  the  halls  as  a  memorial  of  a  dear  guest,  and 
he  carried  it  on  his  own  land. 


But  those  other  twain  went  forth  both  together  from  the  house, 
the  neatherd  and  the  swineherd  of  godlike  Odysseus;  and 
Odysseus  passed  out  after  them.  But  when  they  were  now  gotten 
without  the  gates  and  the  courtyard^  he  uttered  his  voice  and  spake 
to  them  in  gentle  words : 

"  Neatherd  and  thou  swineherd,  shall  I  say  somewhat  or  keep 
it  to  myself  ?  Nay,  my  spirit  bids  me  declare  it.  What  manner 
of  men  would  ye  be  to  help  Odysseus,  if  he  should  come  thus 
suddenly,  I  know  not  whence,  and  some  god  were  to  bring  him  ? 
Would  ye  stand  on  the  side  of  the  wooers  or  of  Odysseus  ?  Tell 
me  even  as  your  heart  and  spirit  bid  you." 

Then  the  neatherd  answered  him,  saying :  "  Father  Zeus,  if  but 
thou  wouldst  fulfil  this  wish :  oh,  that  that  man  might  come, 
and  some  god  lead  him  hither !  So  shouldest  thou  know  what 
my  might  is,  and  how  my  hands  follow  to  obey." 

In  like  manner  Eumseus  prayed  to  all  the  gods  that  wise 
Odysseus  might  return  to  his  own  house. 

Now  when  he  knew  for  a  surety  what  spirit  they  were  of,  once 
more  he  answered  and  spake  to  them,  saying : 

*'  Behold,  home  am  I  come,  even  I ;  after  much  travail  and 
sore  am  I  come  in  the  twentieth  year  to  mine  own  country.  And  I 
know  how  that  my  coming  is  desired  by  you  alone  of  all  my  thralls, 
for  from  none  besides  have  I  heard  a  prayer  that  I  might  return 
once  more  to  my  home.     And  now  I  will  tell  you  all  the  truth. 


Chap.  II.]  THE   ODYSSEY   OF    HOMER  53 

even  as  it  shall  come  to  pass.  If  the  god  shall  subdue  the  proud 
wooers  to  my  hands,  I  will  bring  you  each  one  a  wife,  and  will 
give  you  a  heritage  of  your  own  and  a  house  builded  near  to  me, 
and  ye  twain  shall  be  thereafter  in  mine  eyes  as  the  brethren  and 
companions  of  Telemachus.  But  behold,  I  will  likewise  show  you 
a  most  manifest  token,  that  ye  may  know  me  well  and  be  certified 
in  heart,  even  the  wound  that  the  boar  dealt  me  with  his  white 
tusk  long  ago,  when  I  went  to  Parnassus  with  the  sons  of  Autol- 
ycus."  .  .  . 


....  But  when  they  had  poured  forth  and  had  drunken  to 
their  hearts'  desire,  Odysseus  of  many  counsels  spake  among 
them  out  of  a  crafty  heart,  saying : 

"  Hear  me,  ye  wooers  of  the  renowned  queen,  that  I  may  say 
that  which  my  heart  within  me  bids.  .  .  .  Come,  therefore,  give 
me  the  polished  bow,  that  in  your  presence  I  may  prove  my 
hands  and  strength,  whether  I  have  yet  any  force  such  as  once 
was  in  my  supple  limbs,  or  whether  my  wanderings  and  needy 
fare  have  even  now  destroyed  it." 

So  spake  he  and  they  all  were  exceeding  wroth,  for  fear  lest  he 
should  string  the  polished  bow.  And  Antinous  rebuked  him,  and 
spake  and  hailed  him : 

"Wretched  stranger,  thou  hast  no  wit,  iiay  never  so  little. 
Art  thou  not  content  to  feast  at  ease  in  our  high  company,  and 
to  lack  not  thy  share  of  the  banquet,  but  to  hsten  to  our  speech 
and  our  discourse,  while  no  guest  and  beggar  beside  thee  hears  our 
speech?  ..." 

Then  wise  Penelope  answered  him :  "  Antinous,  truly  it  is  not 
fair  nor  just  to  rob  the  guests  of  Telemachus  of  their  due,  whoso- 
ever he  may  be  that  comes  to  this  house.  Dost  thou  think  if 
yonder  stranger  strings  the  great  bow  of  Odysseus,  in  the  pride  of 
his  might  and  of  his  strength  of  arm,  that  he  will  lead  me  to  his 
home  and  make  me  his  wife  ?  "  .  .  . 

Then  wise  Telemachus  answered  her,  saying  :  "My  mother,  as 
for  the  bow,  no  Achaean  is  mightier  than  I  to  give  or  to  deny  it  to 
whomso  I  will,  neither  as  many  as  are  lords  in  rocky  Ithaca  nor 
in  the  isles  on  the  side  of  Elis,  the  pastureland  of  horses.  Not 
one  of  these  shall  force  me  in  mine  own  despite,  if  I  choose  to  give 
this  bow,  yea  once  and  for  all,  to  the  stranger  to  bear  away  with 
him.  But. do  thou  go  to  thine  own  chamber  and  mind  thine  own 
housewiferies,  the  loom  and  distaff,  and  bid  thine  handmaids  ply 


54  GENERAL   LITERATURE  [Part  I. 

their  tasks.     But  the  bow  shall  be  for  men,  for  all,  but  for  me  in 
chief,  for  mine  is  the  lordship  in  the  house." 

Then  in  amaze  she  went  back  to  her  chamber,  for  she  laid  up 
the  wise  saying  of  her  son  in  her  heart. 

******* 

BOOK  XXII 
The  killing  of  the  wooers. 

*  *  *  *  *  *  * 

.  .  .  Then  Odysseus  of  many  counsels  looked  fiercely  on 
them,  and  spake :  .  .  . 

.  .  .  And  pale  fear  gat  hold  on  the  limbs  of  all,  and  each 
man  looked  about,  where  he  might  shun  utter  doom.  And 
Eurymachus  alone  answered  him,  and  spake  :  ''If  thou  art  indeed 
Odysseus  of  Ithaca,  come  home  again,  with  right  thou  speakest 
thus,  of  all  that  the  Achseans  have  wrought,  many  infatuate 
deeds  in  thy  halls  and  many  in  the  field.  Howbeit,  he  now  lies 
dead  that  is  to  blame  for  all,  Antinous ;  for  he  brought  all  these 
things  upon  us,  not  as  longing  very  greatly  for  the  marriage  nor 
needing  it  sore,  but  with  another  purpose,  that  Cronion  has  not 
fulfilled  for  him,  namely,  that  he  might  himself  be  king  over  all 
the  land  of  stablished  Ithaca,  and  he  was  to  have  lain  in  wait 
for  thy  son  and  killed  him.  But  now  he  is  slain  after  his  deserv- 
ing, and  do  thou  spare  thy  people,  even  thine  own ;  and  we  will 
hereafter  go  about  the  township  and  yield  thee  amends  for  all 
that  has  been  eaten  and  drunken  in  thy  halls,  each  for  himself 
bringing  atonement  of  twenty  oxen  worth,  and  requiting  thee  in 
gold  and  bronze  till  thy  heart  is  softened,  but  till  then  none  may 
blame  thee  that  thou  art  angry." 

Then  Odysseus  of  many  counsels  looked  fiercely  on  him,  and 
said :  "  Eurymachus,  not  even  if  ye  gave  me  all  your  heritage, 
all  that  ye  now  have,  and  whatsoever  else  ye  might  in  any  wise 
add  thereto,  not  even  so  would  I  henceforth  hold  my  hands  from 
slaying,  ere  the  wooers  had  paid  for  all  their  transgressions.  And 
now  the  choice  lies  before  you,  whether  to  fight  in  fair  battle  or 
to  fly,  if  any  may  avoid  death  and  the  fates.  But  there  be  some, 
methinks,  that  shall  not  escape  from  utter  doom."  .  .  . 

*  *  *  *  *  *  * 

Then  Athene,  daughter  of  Zeus,  drew  nigh  them,  Hke  Mentor 
in  fashion  and  in  voice,  and  Odysseus  was  glad  when  he  saw  her 
and  spake,  saying : 


Chap.  II.]  THE   ODYSSEY   OF  HOMER  55 

"  Mentor,  ward  from  us  hurt,  and  remember  me  thy  dear  com- 
panion, that  befriended  thee  often,  and  thou  art  of  Hke  age  with 
me." 

So  he  spake,  deeming  the  while  that  it  was  Athene,  summoner 
of  the  host.  But  the  wooers  on  the  other  side  shouted  in  the  halls, 
and  first  Agelaus  son  of  Damastor  rebuked  Athene,  saying : 

''Mentor,  let  not  the  speech  of  Odysseus  beguile  thee  to  fight 
against  the  wooers,  and  to  succour  him.  For  methinks  that  on 
this  wise  we  shall  work  our  will.  When  we  shall  have  slain  these 
men,  father  and  son,  thereafter  shalt  thou  perish  with  them,  such 
deeds  thou  art  set  on  doing  in  these  halls ;  nay,  with  thine  own 
head  shalt  thou  pay  the  price.  But  when  with  the  sword  we  shall 
have  overcome  your  violence,  we  will  mingle  all  thy  possessions, 
all  that  thou  hast  at  home  or  in  the  field,  with  the  wealth  of  Odys- 
seus, and  we  will  not  suffer  thy  sons  nor  thy  daughters  to  dwell 
in  the  halls,  nor  thy  good  wife  to  gad  about  in  the  town  of  Ithaca.'* 

BOOK  XXIII 

Odysseus  maketh  himself  known  to  Penelope,  tells  his  adventures 
briefly  and  in  the  morning  goes  to  Laertes  and  makes  himself  known  to 
him. 

[Odysseus]  "...  Let  us  then  advise  us  how  all  may  be  for 
the  very  best.  For  whoso  has  slain  but  one  man  in  a  land,  even 
one  that  leaves  not  many  behind  him,  to  take  up  the  feud  for  him, 
turns  outlaw  and  leaves  his  kindred  and  his  own  country ;  but  we 
have  slain  the  very  stay  of  the  city,  the  men  who  were  far  the 
best  of  all  the  noble  youths  in  Ithaca.     So  this  I  bid  thee  consider.'* 

Then  wise  Telemachus  answered  him,  saying:  "Father,  see 
thou  to  this,  for  they  say  that  thy  counsel  is  far  the  best  among 
men,  nor  might  any  other  of  mortal  men  contend  with  thee. 
But  right  eagerly  will  we  go  with  thee  now,  and  I  think  we  shall 
not  lack  prowess,  so  far  as  might  is  ours." 

And  Odysseus  of  many  counsels  answered  him  saying :  "  Yea 
now,  I  will  tell  on  what  wise  methinks  it  is  best.  First,  go  ye  to 
the  bath  and  array  you  in  your  doublets,  and  bid  the  maidens 
in  the  chambers  to  take  to  them  their  garments.  Then  let  the 
divine  minstrel,  with  his  loud  lyre  in  hand,  lead  off  for  us  the 
measure  of  the  mirthful  dance.  So  shall  any  man  that  hears 
the  sound  from  without,  whether  a  wayfarer  or  one  of  those  that 
dwell  around,  say  that  it  is  a  wedding  feast.  And  thus  the 
slaughter  of  the  wooers  shall  not  be  noised  abroad  through  the 


66  GENERAL   LITERATURE  [Part  I. 

town  before  we  go  forth  to  our  well-wooded  farm-land.  There- 
after shall  we  consider  what  gainful  counsel  the  Olympian  may 
vouchsafe  us." 

'      *  ♦  *  *  *  !iC  * 

BOOK  XXIV 


The  Ithacans  bury  the  wooers,  and  sitting  in  council  resolve  on  revenge. 
And  coming  near  the  house  of  Laertes,  are  met  by  Odysseus,  and  Laertes 
with  Telemachus  and  servants,  the  whole  number  twelve,  and  are  over- 
come, and  submit. 


Now  when  those  others  had  gone  down  from  the  city,  quickly 
they  came  to  the  rich  and  well-ordered  farm-land  of  Laertes,  that 
he  had  won  for  himself  of  old,  as  the  prize  of  great  toil  in  war. 
There  was  his  house,  and  all  about  it  ran  the  huts  wherein  the 
thralls  were  wont  to  eat  and  dwell  and  sleep,  bondsmen  that  worked 
his  will.  And  in  the  house  there  was  an  old  Sicilian  woman, 
who  diligently  cared  for  the  old  man,  in  the  upland  far  from  the 
city.     There  Odysseus  spake  to  his  thralls  and  to  his  son,  saying : 

"  Do  ye  now  get  you  within  the  well-builded  house,  and  quickly 
sacrifice  the  best  of  the  swine  for  the  midday  meal,  but  I  will 
make  trial  of  my  father,  whether  he  will  know  me  again  and  be 
aware  of  me  when  he  sees  me,  or  know  me  not,  so  long  have  I 
been  away." 

Therewith  he  gave  the  thralls  his  weapons  of  war.  Then  they 
went  speedily  to  the  house,  while  Odysseus  drew  near  to  the  fruit- 
ful vineyard  to  make  trial  of  his  father.  Now  he  found  not 
Dolius  there,  as  he  went  down  into  the  great  garden,  nor  any  of 
the  thralls  nor  of  their  sons.  It  chanced  that  they  had  all  gone 
to  gather  stones  for  a  garden  fence,  and  the  old  man  at  their  head. 
So  he  found  his  father  alone  in  the  terraced  vineyard,  digging 
about  a  plant.  .  .  .  Now  he  was  holding  his  head  down  and 
kept  digging  about  the  plant,  while  his  renowned  son  stood  by 
him  and  spake,  saying:  "...  Whose  thrall  art  thou,  and 
whose  garden  dost  thou  tend?  Tell  me  moreover  truly,  that  I 
may  surely  know,  if  it  be  indeed  to  Ithaca  that  I  am  now  come, 
as  one  yonder  told  me  who  met  with  me  but  now  on  the  way 
hither.  .  .  .  Once  did  I  kindly  entreat  a  man  in  mine  own  dear 
country,  who  came  to  our  home,  and  never  yet  has  any  mortal 
been  dearer  of  all  the  strangers  that  have  drawn  to  my  house  from 
afar.     He  declared  him  to  be  by  lineage  from  out  of  Ithaca,  and 


Chap.  II.]  THE   ODYSSEY  OF  HOMER  57 

said  that  his  own  father  was  Laertes  son  of  Arceisius.  So  I  led 
him  to  our  halls  and  gave  him  good  entertainment,  with  all  loving- 
iindness,  out  of  the  plenty  that  was  within.  Such  gifts  too  I 
gave  him  as  are  the  due  of  guests ;  of  well  wrought  gold  I  gave  him 
seven  talents,  and  a  mixing  bowl  of  flowered  work,  all  of  silver, 
and  twelve  cloaks  of  single  fold,  and  as  many  coverlets,  and  as 
many  goodly  mantles  and  doublets  to  boot,  and  besides  all  these, 
four  women  skilled  in  all  fair  works  and  most  comely,  the  women 
of  his  choice."  .  .  . 


.  .  .  Now  Rumour  the  messenger  went  swiftly  all  about  the 
city,  telling  the  tale  of  the  dire  death  and  fate  of  the  wooers. 
And  the  people  heard  it,  and  all  at  once  gathered  together  from 
every  side  with  sighing  and  groaning  before  the  house  of  Odysseus. 
And  each  brought  forth  his  dead  from  the  halls,  and  buried  them ; 
but  those  that  came  out  of  other  cities  they  placed  on  swift  ships 
and  sent  with  fisherfolk,  each  to  be  carried  to  his  own  home.  As 
for  them  they  all  fared  together  to  the  assembly-place,  in  sorrow 
of  heart.  When  they  were  all  gathered  and  come  together, 
Eupeithes  arose  and  spake  among  them,  for  a  comfortless  grief 
lay  heavy  on  his  heart  for  his  son  Antinous,  the  first  man  that 
goodly  Odysseus  had  slain.  Weeping  for  him  he  made  harangue 
and  spake  among  them : 

"  Friends,  a  great  deed  truly  hath  this  man  devised  against  the 
Achseans.  Some  with  his  ships  he  led  away,  many  men  and  noble, 
and  his  hollow  ships  hath  he  lost,  and  utterly  lost  of  his  company, 
and  others  again,  and  those  far  the  best  of  the  Cephallenians  he 
hath  slain  on  his  coming  home.  Up  now,  before  ever  he  gets  him 
swiftly  either  to  Pylos  or  to  fair  Elis,  where  the  Epeians  bear 
sway,  let  us  go  forth ;  else  even  hereafter  shall  we  have  shame  of 
face  for  ever.  For  a  scorn  this  is  even  for  the  ears  of  men  unborn 
to  hear,  if  we  avenge  not  ourselves  on  the  slayers  of  our  sons  and 
of  our  brethren.  Life  would  no  more  be  sweet  to  me,  but  rather 
would  I  die  straightway  and  be  with  the  departed.  Up,  let  us  be 
going,  lest  these  fellows  be  beforehand  with  us  and  get  them  over 
the  sea." 


Then  the  old  man,  the  lord  Halitherses,  spake  among  them,  the 
son  of  Mastor,  for  he  saw  before  and  after.  Out  of  his  good 
will  he  made  harangue  and  spake  among  them,  saying : 


58  GENERAL  LITERATURE  [Part  I. 

"...  Let  US  not  go  forth  against  him,  lest  haply  some  may 
find  a  bane  of  their  own  bringing." 

So  he  spake,  but  they  leapt  up  with  a  great  cry,  the  more  part 
of  them,  while  the  rest  abode  there  together ;  for  his  counsel  was 
not  to  the  mind  of  the  more  part,  but  they  gave  ear  to  Eupeithes, 
and  swiftly  thereafter  they  rushed  for  their  armour.  So  when 
they  had  arrayed  them  in  shining  mail,  they  assembled  together 
in  front  of  the  spacious  town.  And  Eupeithes  led  them  in  his 
witlessness,  for  he  thought  to  avenge  the  slaying  of  his  son,  yet 
himself  was  never  to  return,  but  then  and  there  to  meet  his 
doom.  .  .  . 


Chapter  III 
PLUTARCH'S  LIVES  1 

SECTION  *  1 

Theseus 


'  Now,  after  the  death  of  his  father  ^geus,  forming  in  his  mind  a 
great  and  wonderful  design,  he  gathered  together  all  the  inhabit- 
ants of  Attica  into  one  town,  and  made  them  one  people  of  one 
city,  whereas  before  they  lived  dispersed,  and  were  not  easy  to 
assemble  upon  any  affair  for  the  common  interest.  Nay,  differ- 
ences and  even  wars  often  occurred  between  them,  which  he  by* 
his  persuasions  appeased,  going  from  township  to  township,  and 
from  tribe  to  tribe.  And  those  of  a  more  private  and  mean  con- 
dition readily  embracing  such  good  advice,  to  those  of  greater 
power  he  promised  a  commonwealth  without  monarchy,  a  democ- 
racy, or  people's  government,  in  which  he  should  only  be  continued 
as  their  commander  in  war  and  the  protector  of  their  laws,  all 
things  else  being  equally  distributed  among  them ;  —  and  by  this 
means  brought  a  part  of  them  over  to  his  proposal.  The  rest, 
fearing  his  power,  which  was  already  grown  very  formidable,  and 
knowing  his  courage  and  resolution,  chose  rather  to  be  persuaded 
than  forced  into  a  compliance.  He  then  dissolved  all  the  distinct 
State-houses,  council  halls,  and  magistracies,  and  built  one  com- 
mon state-house  and  council  hall  on  the  site  of  the  present  upper 
town,  and  gave  the  name  of  Athens  to  the  whole  state,  ordaining 
a  common  feast  and  sacrifice,  which  he  called  Panathensea,  or  the 
sacrifice  of  all  the  united  Athenians.  He  instituted  also  another 
sacrifice  called  Metoecia,  or  Feast  of  Migration,  which  is  yet  cele- 
brated on  the  sixteenth  day  of  Hecatombaeon.  Then,  as  he  had 
promised,  he  laid  down  his  regal  power  and  proceeded  to  order  a 
commonwealth,  entering  upon  this  great  work  not  without  advice 
from  the  gods.   .   .   . 

^  [Translated  from  the  Greek  by  John  Dryden  and  others.     Plutarch 
was  born  at  Chaeronea,  in  Boeotia,  about  46  a.d.] 

59 


60  GENERAL   LITERATURE  [Part  I. 

Farther  yet  designing  to  enlarge  his  city,  he  invited  all  strangers 
to  come  and  enjoy  equal  privileges  with  the  natives,  and  it  is  said 
that  the  common  form.  Come  hither,  all  ye  people,  was  the  words 
that  Theseus  proclaimed  when  he  thus  set  up  a  commonwealth, 
in  a  manner,  for  all  nations.  Yet  he  did  not  suffer  his  state,  by 
the  promiscuous  multitude  that  flowed  in,  to  be  turned  into  con- 
fusion and  be  left  without  any  order  or  degree,  but  was  the  first 
that  divided  the  Commonwealth  into  three  distinct  ranks,  the 
noblemen,  the  husbandmen,  and  artificers.  To  the  nobility  he 
committed  the  care  of  religion,  the  choice  of  magistrates,  the 
teaching  and  dispensing  of  the  laws,  and  interpretation  and  direc- 
tion in  all  sacred  matters;  the  whole  city  being,  as  it  were,  re- 
duced to  an  exact  equality,  the  nobles  excelling  the  rest  in  honor, 
the  husbandmen  in  profit,  and  the  artificers  in  number.  And 
that  Theseus  was  the  first,  who,  as  Aristotle  says,  out  of  an  in- 
clination to  popular  government,  parted  with  the  regal  power. 
Homer  also  seems  to  testify,  in  his  catalogue  of  the  ships,  where 
he  gives  the  name  of  People  to  the  Athenians  only. 
•  He  also  coined  money,  and  stamped  it  with  the  image  of  an  ox, 
either  in  memory  of  the  Marathonian  bull,  or  of  Taurus,  whom 
he  vanquished,  or  else  to  put  his  people  in  mind  to  follow  hus- 
bandry; and  from  this  coin  came  the  expression  so  frequent 
among  the  Greeks,  of  a  thing  being  worth  ten  or  a  hundred  oxen. 


SECTION  2 
Romulus 

Not  long  after  the  first  foundation  of  the  city,  they  [Romulus 
and  Remus]  opened  a  sanctuary  of  refuge  for  all  fugitives,  which 
they  called  the  temple  of  the  god  Asylaeus,  where  they  received 
and  protected  all,  delivering  none  back,  neither  the  servant  to 
his  master,  the  debtor  to  his  creditor,  nor  the  murderer  into  the 
hands  of  the  magistrate,  saying  it  was  a  privileged  place,  and 
they  could  so  maintain  it  by  an  order  of  the  holy  oracle ;  insomuch 
that  the  city  grew  presently  very  populous,  for  they  say,  it  con- 
sisted at  first  of  no  more  than  a  thousand  houses. 

:)(  4c  :ic  sic  4:  ^  ^ 

The  city  now  being  built,  Romulus  enlisted  all  that  were  of 
age  to  bear  arms  into  military  companies,  each  company  consist- 
ing of  three  thousand  footmen  and  three  hundred  horse.  These 
companies  were  called  legions,  because  they  were  the  choicest  and 


I 


Chap.  Ill,  §  2.]  PLUTARCH's   LIVES  61 

most  select  of  the  people  for  fighting  men.  The  rest  of  the  mul- 
titude he  called  the  people ;  an  hundred  of  the  most  eminent  he 
chose  for  counsellors ;  these  he  styled  patricians,  and  their  assem- 
bly the  senate,  which  signifies  a  council  of  elders.  The  patricians, 
some  say,  were  so  called  because  they  were  the  fathers  of  lawful 
children;  others,  because  they  could  give  a  good  account  who 
their  own  fathers  were,  which  not  every  one  of  the  rabble  that 
poured  into  the  city  at  first  could  do;  others,  from  patronage, 
their  word  for  protection  of  inferiors,  the  origin  of  which  they 
attribute  to  Patron,  one  of  those  that  came  over  with  Evander, 
who  was  a  great  protector  and  defender  of  the  weak  and  needy. 
But  perhaps  the  most  probable  judgment  might  be,  that  Romulus, 
esteeming  it  the  duty  of  the  chiefest  and  wealthiest  men,  with  a 
fatherly  care  and  concern  to  look  after  the  meaner,  and  also  en- 
couraging the  commonalty  not  to  dread  or  be  aggrieved  at  the 
honors  of  their  superiors,  but  to  love  and  respect  them,  and  to 
think  and  call  them  their  fathers,  might  from  hence  give  them  the 
name  of  patricians.  For  at  this  very  time  all  foreigners  give 
senators  the  style  of  lords;  but  the  Romans,  making  use  of  a 
more  honorable  and  less  invidious  name,  call  them  Patres  Con- 
scripti ;  at  first,  indeed,  simply  Patres,  but  afterwards,  more 
being  added,  Patres  Conscripti.  By  this  more  imposing  title  he 
distinguished  the  senate  from  the  populace;  and  in  other  ways 
also  separated  the  nobles  and  the  commons,  —  calling  them 
patrons,  and  these  their  clients,  —  by  which  means  he  created 
wonderful  love  and  amity  betwixt  them,  productive  of  great 
justice  in  their  dealings.  For  they  were  always  their  clients* 
counsellors  in  law  cases,  their  advocates  in  courts  of  justice;  in 
fine,  their  advisers  and  supporters  in  all  affairs  whatever.  These 
again  faithfully  served  their  patrons,  not  only  paying  them  all 
respect  and  deference,  but  also,  in  case  of  poverty,  helping  them 
to  portion  their  daughters  and  pay  off  their  debts;  and  for  a 
patron  to  witness  against  his  client,  or  a  client  against  his  patron, 
was  what  no  law  nor  magistrate  could  enforce.  In  aftertimes,  all 
other  duties  subsisting  still  between  them,  it  was  thought  mean  and 
dishonorable  for  the  better  sort  to  take  money  from  their  inferiors. 


He  instituted  also  certain  laws,  one  of  which  is  somewhat  severe 
which  suffers  not  a  wife  to  leave  her  husband,  but  grants  a  husband 
power  to  turn  off  his  wife,  either  upon  poisoning  her  children,  or 
counterfeiting  his  keys,  or  for  adultery ;  but  if  the  husband  upon 


62  GENERAL    LITERATURE  [Part  I. 

any  other  occasion  put  her  away,  he  ordered  one  moiety  of  his 
estate  to  be  given  to  the  wife,  the  other  to  fall  to  the  goddess 
Ceres ;  and  whoever  cast  off  his  wife,  to  make  an  atonement  by 
sacrifice  to  the  gods  of  the  dead.  This,  too,  is  observable  as  a 
singular  thing  in  Romulus,  that  he  appointed  no  punishment  for 
real  parricide,  but  called  all  murder  so,  thinking  the  one  an  ac- 
cursed thing,  but  the  other  a  thing  impossible;  and,  for  a  long 
time,  his  judgment  seemed  to  have  been  right ;  for  in  almost  six 
hundred  years  together,  nobody  committed  the  like  in  Rome ; 
and  Lucius  Hostius,  after  the  wars  of  Hannibal,  is  recorded  to 
have  been  the  first  parricide.  Let  thus  much  suffice  concerning 
these  matters. 

In  the  fifth  year  of  the  reign  of  Tatius,  some  of  his  friends  and 
kinsmen,  meeting  ambassadors  coming  from  Laurentum  to  Rome, 
attempted  on  the  road  to  take  away  their  money  by  force,  and, 
upon  their  resistance,  killed  them.  So  great  a  villany  having  been 
committed  Romulus  thought  the  malefactors  ought  at  once  to  be 
punished,  but  Tatius  shuffled  off  and  deferred  the  execution  of  it ; 
and  this  one  thing  was  the  beginning  of  open  quarrel  betwixt 
them ;  in  all  other  respects  they  were  very  careful  of  their  conduct, 
and  administered  affairs  together  with  great  unanimity.  The 
relations  of  the  slain,  being  debarred  of  lawful  satisfaction  by 
reason  of  Tatius,  fell  upon  him  as  he  was  sacrificing  with  Romulus 
at  Lavinium,  and  slew  him;  but  escorted  Romulus  home,  com- 
mending and  extolling  him  for  a  just  prince.  Romulus  took  the 
body  of  Tatius,  and  buried  it  very  splendidly  in  the  Aventine 
Mount,  near  the  place  called  Armilustrium,  but  altogether  neg- 
lected revenging  his  murder.  Some  authors  write,  the  city  of 
Laurentum,  fearing  the  consequences,  delivered  up  the  murderers 
of  Tatius ;  but  Romulus  dismissed  them,  saying,  one  murder  was 
requited  with  another.  This  gave  occasion  of  talk  and  jealousy, 
as  if  he  were  well  pleased  at  the  removal  of  his  copartner  in  the 
government.   .   .   . 

Soon  after  a  plague  broke  out,  causing  sudden  death  without 
any  previous  sickness ;  it  infected  also  the  corn  with  unfruitful- 
ness,  and  cattle  with  barrenness ;  there  rained  blood,  too,  in  the 
city ;  so  that,  to  their  actual  sufferings,  fear  of  the  wrath  of  the 
gods  was  added.  But  when  the  same  mischiefs  fell  upon  Lauren- 
tum, then  everybody  judged  it  was  divine  vengeance  that  fell 
upon  both  cities,  for  the  neglect  of  executing  justice  upon  the  mur- 
der of  Tatius  and  the  ambassadors.  But  the  murderers  on  both 
sides  being  delivered  up  and  punished,   the  pestilence  visibly 


Chap.  Ill,  §  3.]  PLUTARCH's   LIVES  63 

abated ;   and  Romulus  purified  the  cities  with  lustrations,  which, 
they  say,  even  now,  are  performed  at  the  wood  called  Ferentina. 


SECTION  3 

Lycurgus 

There  is  so  much  uncertainty  in  the  accounts  which  historians 
have  left  us  of  Lycurgus,  the  lawgiver  of  Sparta,  that  scarcely 
anything  is  asserted  by  one  of  them  which  is  not  called  into  ques- 
tion or  contradicted  by  the  rest.  Their  sentiments  are  quite 
different  as  to  the  family  he  came  of,  the  voyages  he  undertook, 
the  place  and  manner  of  his  death,  but  most  of  all  when  they  speak 
of  the  laws  he  made  and  the  commonwealth  which  he  founded. 

Amongst  the  many  changes  and  alterations  which  Lycurgus 
made,  the  first  and  of  greatest  importance  was  the  establishment 
of  the  senate,  which  having  a  power  equal  to  the  kings'  in  matters 
of  great  consequence,  and,  as  Plato  expresses  it,  allaying  and 
qualifying  the  fiery  genius  of  the  royal  office,  gave  steadiness  and 
safety  to  the  commonwealth.  For  the  state,  which  before  had 
no  firm  basis  to  stand  upon,  but  leaned  one  while  towards  an 
absolute  monarchy,  when  the  kings  had  the  upper  hand,  and  an- 
other while  towards  a  pure  democracy,  when  the  people  had  the 
better,  found  in  this  establishment  of  the  senate  a  central  weight, 
like  ballast  in  a  ship,  which  always  kept  things  in  a  just  equilib- 
rium. 

After  the  creation  of  the  thirty  senators,  his  next  task,  and, 
indeed,  the  most  hazardous  he  ever  undertook,  was  the  making  a 
new  division  of  their  lands.  For  there  was  an  extreme  inequality 
amongst  them,  and  their  state  was  overloaded  with  a  multitude 
of  indigent  and  necessitous  persons,  while  its  whole  wealth  had 
centred  upon  a  very  few.  To  the  end,  therefore,  that  he  might 
expel  from  the  state  arrogance  and  envy,  luxury  and  crime,  and 
those  yet  more  inveterate  diseases  of  want  and  superfluity,  he 
obtained  of  them  to  renounce  their  properties,  and  to  consent 
to  a  new  division  of  the  land,  and  that  they  should  live  all  together 
on  an  equal  footing;  merit  to  be  their  only  road  to  eminence, 
and  the  disgrace  of  evil,  and  credit  of  worthy  acts,  their  one 
measure  of  difference  between  man  and  man. 


64  GENERAL   LITERATURE  [Part  I. 

Upon  their  consent  to  these  proposals,  proceeding  at  once  to 
put  them  into  execution,  he  divided  the  country  of  Laconia  in 
general  into  thirty  thousand  equal  shares,  and  the  part  attached 
to  the  city  of  Sparta  into  nine  thousand;  these  he  distributed 
among  the  Spartans,  as  he  did  the  others  to  the  country  citizens. 
Some  authors  say  that  he  made  but  six  thousand  lots  for  the 
citizens  of  Sparta,  and  that  king  Polydorus  added  three  thousand 
more.  Others  say  that  Polydorus  doubled  the  number  Lycurgus 
had  made,  which,  according  to  them,  was  but  four  thousand  five 
hundred.  A  lot  was  so  much  as  to  yield,  one  year  with  another, 
about  seventy  bushels  of  grain  for  the  master  of  the  family,  and 
twelve  for  his  wife,  with  a  suitable  proportion  of  oil  and  wine. 
And  this  he  thought  sufficient  to  keep  their  bodies  in  good  health 
and  strength;  superfluities  they  were  better  without.  It  is  re- 
ported, that,  as  he  returned  from  a  journey  shortly  after  the 
division  of  the  lands,  in  harvest  time,  the  ground  being  newly 
reaped,  seeing  the  stacks  all  standing  equal  and  alike,  he  smiled, 
and  said  to  those  about  him,  "Methinks  all  Laconia  looks  like 
one  family  estate  just  divided  among  a  number  of  brothers." 

Not  contented  with  this,  he  resolved  to  make  a  division  of  their 
movables  too,  that  there  might  be  no  odious  distinction  or  in- 
equality left  amongst  them;  but  finding  that  it  would  be  very 
dangerous  to  go  about  it  openly,  he  took  another  course,  and 
defeated  their  avarice  by  the  following  stratagem  :  he  commanded 
that  all  gold  and  silver  coin  should  be  called  in,  and  that  only  a 
sort  of  money  made  of  iron  should  be  current,  a  great  weight  and 
quantity  of  which  was  very  little  worth ;  so  that  to  lay  up  twenty 
or  thirty  pounds  there  was  required  a  pretty  large  closet,  and,  to 
remove  it,  nothing  less  than  a  yoke  of  oxen.  With  the  diffusion 
of  this  money,  at  once  a  number  of  vices  were  banished  from 
Lacedsemon;  for  who  would  rob  another  of  such  a  coin?  Who 
would  unjustly  detain  or  take  by  force,  or  accept  as  a  bribe,  a 
thing  which  it  was  not  easy  to  hide,  nor  a  credit  to  have,  nor 
indeed  of  any  use  to  cut  in  pieces  ?  For  when  it  was  just  red  hot, 
they  quenched  it  in  vinegar,  and  by  that  means  spoilt  it,  and 
made  it  almost  incapable  of  being  worked. 

In  the  next  place,  he  declared  an  outlawry  of  all  needless  and 
superfluous  arts  ;  but  here  he  might  almost  have  spared  his  procla- 
mation; for  they  of  themselves  would  have  gone  after  the  gold 
and  silver,  the  money  which  remained  being  not  so  proper  pay- 
ment for  curious  work ;  for,  being  of  iron,  it  was  scarcely  portable, 
neither,  if  they  should  take  the  means  to  export  it,  would  it  pass 


Chap.  Ill,  §  3.]  PLUTARCh's   LIVES  65 

amongst  the  other  Greeks,  who  ridiculed  it.  So  there  was  now 
no  more  means  of  purchasing  foreign  goods  and  small  wares; 
merchants  sent  no  shiploads  into  Laconian  ports;  no  rhetoric- 
master,  no  itinerant  fortune-teller,  no  harlot-monger,  or  gold  or 
silversmith,  engraver,  or  jeweller,  set  foot  in  a  country  which  had 
no  money ;  so  that  luxury,  deprived  little  by  little  of  that  which 
fed  and  fomented  it,  wasted  to  nothing  and  died  away  of  itself. 
For  the  rich  had  no  advantage  here  over  the  poor,  as  their  wealth 
and  abundance  had  no  road  to  come  abroad  by  but  were  shut  up 
at  home  doing  nothing.  And  in  this  way  they  became  excellent 
artists  in  common,  necessary  things ;  bedsteads,  chairs,  and  tables, 
and  such  like  staple  utensils  in  a  family,  were  admirably  well 
made  there;  their  cup,  particularly,  was  very  much  in  fashion, 
and  eagerly  bought  up  by  soldiers,  as  Critias  reports;  for  its 
color  was  such  as  to  prevent  water,  drunk  upon  necessity  and  dis- 
agreeable to  look  at,  from  being  noticed ;  and  the  shape  of  it 
was  such  that  the  mud  stuck  to  the  sides,  so  that  only  the  purer 
part  came  to  the  drinker's  mouth.  For  this,  also,  they  had  to 
thank  their  lawgiver,  who,  by  relieving  the  artisans  of  the  trouble 
of  making  useless  things,  set  them  to  show  their  skill  in  giving 
beauty  to  those  of  daily  and  indispensable  use. 

The  third  and  most  masterly  stroke  of  this  great  lawgiver, 
by  which  he  struck  a  yet  more  effectual  blow  against  luxury  and 
the  desire  of  riches,  was  the  ordinance  he  made,  that  they  should 
all  eat  in  common,  of  the  same  bread  and  same  meat,  and  of  kinds 
that  were  specified,  and  should  not  spend  their  lives  at  home, 
laid  on  costly  couches  at  splendid  tables,  delivering  themselves 
up  into  the  hands  of  their  tradesmen  and  cooks,  to  fatten  them  in 
corners,  like  greedy  brutes,  and  to  ruin  not  their  minds  only  but 
their  very  bodies  which,  enfeebled  by  indulgence  and  excess, 
would  stand  in  need  of  long  sleep,  warm  bathing,  freedom  from 
work,  and,  in  a  word,  of  as  much  care  and  attendance  as  if  they 
were  continually  sick.  It  was  certainly  an  extraordinary  thing 
to  have  brought  about  such  a  result  as  this,  but  a  greater  yet  to 
have  taken  away  from  wealth,  as  Theophrastus  observes,  not 
merely  the  property  of  being  coveted,  but  its  very  nature  of  being 
wealth.  For  the  rich,  being  obliged  to  go  to  the  same  table  with 
the  poor,  could  not  make  use  of  or  enjoy  their  abundance,  nor  so 
much  as  please  their  vanity  by  looking  at  or  displaying  it.  So 
that  the  common  proverb,  that  Plutus,  the  god  of  riches,  is  blind, 
was  nowhere  in  all  the  world  literally  verified  but  in  Sparta. 
There,  indeed,  he  was  not  only  blind,  but  like  a  picture,  without 


66  GENERAL   LITERATURE  [Part  I. 

either  life  or  motion.  Nor  were  they  allowed  to  take  food  at  home 
first,  and  then  attend  the  public  tables,  for  every  one  had  an  eye 
upon  those  who  did  not  eat  and  drink  like  the  rest,  and  reproached 
them  with  being  dainty  and  effeminate. 

This  last  ordinance  in  particular  exasperated  the  wealthier  men. 
They  collected  in  a  body  against  Lycurgus,  and  from  ill  words 
came  to  throwing  stones,  so  that  at  length  he  was  forced  to  run 
out  of  the  market-place,  and  make  to  sanctuary  to  save  his  life ; 
by  good-hap  he  outran  all,  excepting  one  Alcander,  a  young  man 
otherwise  not  ill  accomplished,  but  hasty  and  violent,  who  came 
up  so  close  to  him,  that  when  he  turned  to  see  who  was  so  near 
him,  he  struck  him  upon  the  face  with  his  stick,  and  put  out  one 
of  his  eyes.  Lycurgus,  so  far  from  being  daunted  and  discouraged 
by  this  accident,  stopped  short  and  showed  his  disfigured  face 
and  eye  beat  out  to  his  countrymen ;  they,  dismayed  and  ashamed 
at  the  sight,  delivered  Alcander  into  his  hands  to  be  punished, 
and  escorted  him  home,  with  expressions  of  great  concern  for  his 
ill-usage.  Lycurgus,  having  thanked  them  for  their  care  of  his 
person,  dismissed  them  all,  excepting  only  Alcander ;  and,  taking 
him  with  him  into  his  house,  neither  did  nor  said  anything  severely 
to  him,  but,  dismissing  those  whose  place  it  was,  bade  Alcander 
to  wait  upon  him  at  table.  The  young  man,  who  was  of  an  in- 
genuous temper,  without  murmuring  did  as  he  was  commanded ; 
and  being  thus  admitted  to  live  with  Lycurgus,  he  had  an  oppor- 
tunity to  observe  in  him,  besides  his  gentleness  and  calmness  of 
temper,  an  extraordinary  sobriety  and  an  indefatigable  industry, 
and  so,  from  an  enemy,  became  one  of  his  most  zealous  admirers, 
and  told  his  friends  and  relations  that  Lycurgus  was  not  that 
morose  and  ill-natured  man  they  had  formerly  taken  him  for, 
but  the  one  mild  and  gentle  character  of  the  world.  And  thus 
did  Lycurgus,  for  chastisement  of  his  fault,  make  of  a  wild  and 
passionate  young  man  one  of  the  discreetest  citizens  of  Sparta.ii 

5p  SfC  «}•  SjC  «|C  5(C  ^ 

ft 
But  to  return  to  their  public  repasts ;  —  these  had  several 
names  in  Greek ;  the  Cretans  called  them  andria,  because  t^ 
only  came  to  them.  The  Lacedaemonians  called  them  phiditia, 
that  is,  by  changing  /  into  d,  the  same  as  philitia,  love  feasts, 
because  that,  by  eating  and  drinking  together,  they  haa  oppor- 
tunity of  making  friends.  Or  perhaps  from  phido,  parsimo^iy, 
because  they  were  so  many  schools  of  sobriety;  or  perhaps  the 
first  letter  is  an  addition,  and  the  word  at  first  was  editia,  from 


Chap.  Ill,  §  3.]  PLUTARCH's   LIVES  67 

edode,  eating.  They  met  by  companies  of  fifteen,  more  or  less, 
and  each  of  them  stood  bound  to  bring  in  monthly  a  bushel  of 
meal,  eight  gallons  of  wine,  five  pounds  of  cheese,  two  pounds 
and  a  half  of  figs,  and  some  very  small  sum  of  money  to  buy 
flesh  or  fish  with.  Besides  this,  when  any  of  them  made  sacrifice 
to  the  gods,  they  always  sent  a  dole  to  the  common  hall;  and, 
likewise,  w^hen  any  of  them  had  been  a  hunting,  he  sent  thither  a 
part  of  the  venison  he  had  killed;  for  these  two  occasions  were 
the  only  excuses  allowed  for  supping  at  home.  The  custom  of 
eating  together  was  observed  strictly  for  a  great  while  afterwards ; 
insomuch  that  king  Agis  himself,  after  having  vanquished  the 
Athenians,  sending  for  his  commons  at  his  return  home,  because 
he  desired  to  eat  privately  with  his  queen,  was  refused  them  by 
the  polemarchs;  which  refusal  when  he  resented  so  much  as  to 
omit  next  day  the  sacrifice  due  for  a  war  happily  ended,  they 
made  him  pay  a  fine. 

They  used  to  send  their  children  to  these  tables  as  to  schools 
of  temperance ;  here  they  were  instructed  in  state  affairs  by  listen- 
ing to  experienced  statesmen ;  here  they  learned  to  converse  with 
pleasantry,  to  make  jests  without  scurrility  and  take  them  with- 
out ill  humor.  In  this  point  of  good  breeding,  the  Lacedaemonians 
excelled  particularly,  but  if  any  man  were  uneasy  under  it,  upon 
the  least  hint  given,  there  was  no  more  to  be  said  to  him.  It  was 
customary  also  for  the  eldest  man  in  the  company  to  say  to  each 
of  them,  as  they  came  in,  "Through  this"  (pointing  to  the  door), 
"no  words  go  out."  When  any  one  had  a  desire  to  be  admitted 
into  any  of  these  little  societies,  he  was  to  go  through  the  follow- 
ing probation  :  each  man  in  the  company  took  a  little  ball  of  soft 
bread,  which  they  were  to  throw  into  a  deep  basin,  which  a  waiter 
carried  round  upon  his  head;  those  that  liked  the  person  to  be 
chosen  dropped  their  ball  into  the  basin  without  altering  its  figure, 
..nd  those  who  disliked  him  pressed  it  betwixt  their  fingers,  and 
made  it  flat ;  and  this  signified  as  much  as  a  negative  voice.  And 
*^  there  were  but  one  of  these  flattened  pieces  in  the  basin,  the 
suitor  was  rejected,  so  desirous  were  they  that  all  the  members 
.  '^'^lie-  company  should  be  agreeable  to  each  other.  The  basin 
was  called  caddichus,  and  the  rejected  candidate  had  a  name 
thence  derived. 


Lycurgus  would  never  reduce  his  laws  into  writing ;   nay  there 
is  a  Rhetra  expressly  to  forbid  it.     For  he  thought  that  the  most 


68  GENERAL   LITERATURE  [Part  I. 

material  points,  and  such  as  most  directly  tended  to  the  public 
welfare,  being  imprinted  on  the  hearts  of  their  youth  by  a  good 
discipline,  would  be  sure  to  remain,  and  would  find  a  stronger 
security,  than  any  compulsion  would  be,  in  the  principles  of  action 
formed  in  them  by  their  best  lawgiver,  education.  And  as  for 
things  of  lesser  importance,  as  pecuniary  contracts,  and  such  like, 
the  forms  of  which  have  to  be  changed  as  occasion  requires,  he 
thought  it  the  best  way  to  prescribe  no  positive  rule  or  inviolable 
usage  in  such  cases,  willing  that  their  manner  and  form  should 
be  altered  according  to  the  circumstances  of  time,  and  determina- 
tions of  men  of  sound  judgment.  Every  end  and  object  of  law 
and  enactment  it  was  his  design  education  should  effect. 

One,  then,  of  the  Rhetras  was,  that  their  laws  should  not  be 
written;  another  is  particularly  levelled  against  luxury  and  ex- 
pensiveness,  for  by  it  it  was  ordained  that  the  ceilings  of  their 
houses  should  only  be  wrought  by  the  axe,  and  their  gates  and 
doors  smoothed  only  by  the  saw.  Epaminondas's  famous  dictum 
about  his  own  table,  that  "Treason  and  a  dinner  like  this  do  not 
keep  company  together,"  may  be  said  to  have  been  anticipated 
by  Lycurgus.  Luxury  and  a  house  of  this  kind  could  not  well  be 
companions.  For  a  man  must  have  a  less  than  ordinary  share 
of  sense  that  would  furnish  such  plain  and  common  rooms  with 
silver-footed  couches  and  purple  coverlets  and  gold  and  silver 
plate.  Doubtless  he  had  good  reason  to  think  that  they  would 
proportion  their  beds  to  their  houses,  and  their  coverlets  to  their 
beds,  and  the  rest  of  their  goods  and  furniture  to  these.  It  is 
reported  that  king  Leotychides,  the  first  of  that  name,  was  so 
little  used  to  the  sight  of  any  other  kind  of  work,  that,  being 
entertained  at  Corinth  in  a  stately  room,  he  was  much  surprised 
to  see  the  timber  and  ceiling  so  finely  carved  and  panelled,  and 
asked  his  host  whether  the  trees  grew  so  in  his  country. 

A  third  ordinance  or  Rhetra  was,  that  they  should  not  make 
war  often,  or  long,  with  the  same  enemy,  lest  that  they  should 
train  and  instruct  them  in  war,  by  habituating  them  to  defend 
themselves.  And  this  is  what  Agesilaus  was  much  blamed  for, 
a  long  time  after ;  it  being  thought,  that,  by  his  continual  incur- 
sions into  Bceotia,  he  made  the  Thebans  a  match  for  the  Lace- 
daemonians; and  therefore  Antalcidas,  seeing  him  wounded  one 
day,  said  to  him,  that  he  was  very  well  paid  for  taking  such  pains 
to  make  the  Thebans  good  soldiers,  whether  they  would  or  no. 
These  laws  were  called  the  Rhetras,  to  intimate  that  they  were 
divine  sanctions  and  revelations. 


Chap.  Ill,  §  3.]  PLUTARCH's   LIVES  69 

In  order  to  the  good  education  of  their  youth  (which,  as  I  said 
before,  he  thought  the  most  important  and  noblest  work  of  a  law- 
giver), he  went  so  far  back  as  to  take  into  consideration  their 
very  conception  and  birth,  by  regulating  their  marriages.  For 
Aristotle  is  wrong  in  saying,  that,  after  he  had  tried  all  ways  to 
reduce  the  women  to  more  modesty  and  sobriety,  he  was  at  last 
forced  to  leave  them  as  they  were,  because  that  in  the  absence  of 
their  husbands,  who  spent  the  best  part  of  their  lives  in  the  wars, 
their  wives,  whom  they  were  obliged  to  leave  absolute  mistresses 
at  home,  took  great  liberties  and  assumed  the  superiority;  and 
were  treated  with  overmuch  respect  and  called  by  the  title  of 
lady  or  queen.  The  truth  is,  he  took  in  their  case,  also,  all  the 
care  that  was  possible ;  he  ordered  the  maidens  to  exercise  them- 
selves with  wrestling,  running,  throwing  the  quoit,  and  casting 
the  dart,  to  the  end  that  the  fruit  they  conceived  might,  in  strong 
and  healthy  bodies,  take  firmer  root  and  find  better  growth,  and 
withal  that  they,  with  this  greater  vigor,  might  be  the  more  able 
to  undergo  the  pains  of  child-bearing. 


In  their  marriages,  the  husband  carried  off  his  bride  by  a  sort 
of  force ;   nor  were  their  brides  ever  small  and  of  tender  years. 

.  .  .  After  guarding  marriage  with  this  modesty  and  reserve, 
he  was  equally  careful  to  banish  empty  and  womanish  jealousy. 
For  this  object,  excluding  all  licentious  disorders,  he  made  it, 
nevertheless,  honorable  for  men  to  give  the  use  of  their  wives  to 
those  whom  they  should  think  fit,  that  so  they  might  have  children 
by  them;  ridiculing  those  in  whose  opinion  such  favors  are  so 
unfit  for  participation  as  to  fight  and  shed  blood  and  go  to  war 
about  it.  Lycurgus  allowed  a  man  who  was  advanced  in  years 
and  had  a  young  wife  to  recommend  some  virtuous  and  ap- 
proved young  man,  that  she  might  have  a  child  by  him,  who 
might  inherit  the  good  qualities  of  the  father,  and  be  a  son  to 
himself.   .   .   . 

These  regulations,  founded  on  natural  and  social  grounds, 
were  certainly  so  far  from  that  scandalous  liberty  which  was 
afterw^ards  charged  upon  their  women,  that  they  knew  not  what 
adultery  meant.  It  is  told,  for  instance,  of  Geradas,  a  very  an- 
cient Spartan,  that,  being  asked  by  a  stranger  what  punishment 
their  law  had  appointed  for  adulterers,  he  answered,  "There  are 
no  adulterers  in  our  country."  "But,"  replied  the  stranger, 
'* suppose  there   were?"     "Then,"   answered   he,    "the  offender 


70  GENERAL   LITERATURE  [Part  I. 

would  have  to  give  the  plaintiff  a  bull  with  a  neck  so  long  as  that 
he  might  drink  from  the  top  of  Taygetus  of  the  Eurotas  river 
below  it."  The  man,  surprised  at  this,  said,  "Why,  'tis  impos- 
sible to  find  such  a  bull."  Geradas  smilingly  replied,  "'Tis  as 
possible  as  to  find  an  adulterer  in  Sparta."  So  much  I  had  to 
say  of  their  marriages. 

Nor  was  it  in  the  power  of  the  father  to  dispose  of  the  child 
as  he  thought  fit ;  he  was  obliged  to  carry  it  before  certain  triers 
at  a  place  called  Lesche;  these  were  some  of  the  elders  of  the 
tribe  to  which  the  child  belonged ;  their  business  it  was  carefully 
to  view  the  infant,  and,  if  they  found  it  stout  and  well  made, 
they  gave  order  for  its  rearing,  and  allotted  to  it  one  of  the  nine 
thousand  shares  of  land  above  mentioned  for  its  maintenance, 
but,  if  they  found  it  puny  and  ill-shaped,  ordered  it  to  be  taken 
to  what  was  called  the  Apothetse,  a  sort  of  chasm  under  Taygetus ; 
as  thinking  it  neither  for  the  good  of  the  child  itself,  nor  for  the 
public  interest,  that  it  should  be  brought  up,  if  it  did  not,  from 
the  very  outset,  appear  made  to  be  healthy  and  vigorous.  Upon 
the  same  account,  the  women  did  not  bathe  the  new-born  chil- 
dren with  water,  as  is  the  custom  in  all  other  countries,  but  with 
wine,  to  prove  the  temper  and  complexion  of  their  bodies;  from 
a  notion  they  had  that  epileptic  and  weakly  children  faint  and 
waste  away  upon  their  being  thus  bathed,  while,  on  the  contrary, 
those  of  a  strong  and  vigorous  habit  acquire  firmness  and  get  a 
temper  by  it,  like  steel.  There  was  much  care  and  art,  too,  used 
by  the  nurses ;  they  had  no  swaddling  bands ;  the  children  grew 
up  free  and  unconstrained  in  limb  and  form,  and  not  dainty  and 
fanciful  about  their  food ;  not  afraid  in  the  dark,  or  of  being  left 
alone;  and  without  peevishness,  or  ill-humor,  or  crying.  Upon 
this  account,  Spartan  nurses  were  often  bought  up,  or  hired  by 
people  of  other  countries ;  and  it  is  recorded  that  she  who  suckled 
Alcibiades  was  a  Spartan ;  who,  however,  if  fortunate  in  his  nurse, 
was  not  so  in  his  preceptor ;  his  guardian,  Pericles,  as  Plato  tells 
us,  chose  a  servant  for  that  office  called  Zopyrus,  no  better  than 
any  common  slave. 

Lycurgus  was  of  another  mind;  he  would  not  have  masters 
bought  out  of  the  market  for  his  young  Spartans,  nor  such  as 
should  sell  their  pains;  nor  was  it  lawful,  indeed,  for  the  father 
himself  to  breed  up  the  children  after  his  own  fancy ;  but  as  soon 
as  they  were  seven  years  old  they  were  to  be  enrolled  in  certain 
companies  and  classes,  where  they  all  lived  under  the  same  order 
and  discipline,  doing  their  exercises  and  taking  their  play  together. 


Chap.  Ill,  §3.]  PLUTARCH's   LIVES  71 

Of  these,  he  who  showed  the  most  conduct  and  courage  was  made 
captain ;  they  had  their  eyes  always  upon  him,  obeyed  his  orders, 
and  underwent  patiently  whatsoever  punishment  he  inflicted ;  so 
that  the  whole  course  of  their  education  was  one  continued  exer- 
cise of  a  ready  and  perfect  obedience.  The  old  men,  too,  were 
spectators  of  their  performances,  and  often  raised  quarrels  and 
disputes  among  them,  to  have  a  good  opportunity  of  finding  out 
their  different  characters,  and  of  seeing  which  would  be  valiant, 
which  a  coward,  when  they  should  come  to  more  dangerous  en- 
counters. Reading  and  writing  they  gave  them,  just  enough  to 
serve  their  turn ;  their  chief  care  was  to  make  them  good  subjects, 
and  to  teach  them  to  endure  pain  and  conquer  in  battle.  To  this 
end,  as  they  grew  in  years,  their  discipline  was  proportionately 
increased ;  their  heads  were  close-clipped,  they  were  accustomed 
to  go  barefoot,  and  for  the  most  part  to  play  naked. 

After  they  were  twelve  years  old,  they  were  no  longer  allowed 
to  wear  any  undergarment;  they  had  one  coat  to  serve  them  a 
year;  their  bodies  were  hard  and  dry,  with  but  little  acquaint- 
ance of  baths  and  unguents ;  these  human  indulgences  they  were 
allowed  only  on  some  few  particular  days  in  the  year.  They  lodged 
together  in  little  bands  upon  beds  made  of  the  rushes  which  grew 
by  the  banks  of  the  river  Eurotas,  which  they  were  to  break  off 
with  their  hands  without  a  knife ;  if  it  were  winter,  they  mingled 
some  thistle-down  with  their  rushes,  which  it  was  thought  had  the 
property  of  giving  warmth.  By  the  time  they  were  come  to  this 
age  there  was  not  any  of  the  more  hopeful  boys  who  had  not  a 
lover  to  bear  him  company.  The  old  men,  too,  had  an  eye  upon 
them,  coming  often  to  the  grounds  to  hear  and  see  them  contend 
either  in  wit  or  strength  with  one  another,  and  this  as  seriously 
and  with  as  much  concern  as  if  they  were  their  fathers,  their 
tutors,  or  their  magistrates ;  so  that  there  scarcely  was  any  time 
or  place  without  some  one  present  to  put  them  in  mind  of  their 
duty,  and  punish  them  if  they  had  neglected  it. 

Besides  all  this,  there  was  always  one  of  the  best  and  honestest 
men  in  the  city  appointed  to  undertake  the  charge  and  governance 
of  them;  he  again  arranged  them  into  their  several  bands,  and 
set  over  each  of  them  for  their  captain  the  most  temperate  and 
boldest  of  those  they  called  Irens,  who  were  usually  twenty 
years  old,  two  years  out  of  the  boys ;  and  the  oldest  of  the  boys, 
again,  were  Mell-Irens,  as  much  as  to  say,  who  would  shortly  be 
men.  This  young  man,  therefore,  was  their  captain  when  they 
fought  and  their  master  at  home,  using  them  for  the  offices  of  his 


72  GENERAL   LITERATURE  [Part  I. 

house ;  sending  the  eldest  of  them  to  fetch  wood,  and  the  weaker 
and  less  able  to  gather  salads  and  herbs,  and  these  they  must 
either  go  without  or  steal ;  which  they  did  by  creeping  into  the 
gardens,  or  conveying  themselves  cunningly  and  closely  into  the 
eating-houses ;  if  they  were  taken  in  the  fact,  they  were  whipped 
without  mercy,  for  thieving  so  ill  and  awkwardly.  They  stole, 
too,  all  other  meat  they  could  lay  their  hands  on,  looking  out  and 
watching  all  opportunities,  when  people  were  asleep  or  more 
careless  than  usual.  If  they  were  caught,  they  were  not  only 
punished  with  whipping,  but  hunger,  too,  being  reduced  to  their 
ordinary  allowance,  which  was  but  very  slender,  and  so  contrived 
on  purpose,  that  they  might  set  about  to  help  themselves,  and  be 
forced  to  exercise  their  energy  and  address.  This  was  the  principal 
design  of  their  hard  fare;  there  was  another  not  inconsiderable, 
that  they  might  grow  taller ;  for  the  vital  spirits,  not  being  over- 
burdened and  oppressed  by  too  great  a  quantity  of  nourishment, 
which  necessarily  discharges  itself  into  thickness  and  breadth,  do 
by  their  natural  lightness,  rise ;  and  the  body,  giving  and  yielding 
because  it  is  pliant,  grows  in  height.  ... 

To  return  from  whence  we  have  digressed.  So  seriously  did 
the  Lacedaemonian  children  go  about  their  stealing,  that  a  youth, 
having  stolen  a  young  fox  and  hid  it  under  his  coat,  suffered  it 
to  tear  out  his  very  bowels  with  its  teeth  and  claws  and  died  upon 
the  place,  rather  than  let  it  be  seen.  What  is  practised  to  this 
very  day  in  Lacedsemon  is  enough  to  gain  credit  to  this  story,  for 
I  myself  have  seen  several  of  the  youths  endure  whipping  to  death 
at  the  foot  of  the  altar  of  Diana  surnamed  Orthia. 

The  Iren,  or  under-master,  used  to  stay  a  little  with  them  after 
supper,  and  one  of  them  he  bade  to  sing  a  song,  to  another  he 
put  a  question  which  required  an  advised  and  deliberate  answer ; 
for  example.  Who  was  the  best  man  in  the  city  ?  W^hat  he  thought 
of  such  an  action  of  such  a  man  ?  They  used  them  thus  early  to 
pass  a  right  judgment  upon  persons  and  things,  and  to  inform 
themselves  of  the  abilities  or  defects  of  their  countrymen.  If 
they  had  not  an  answer  ready  to  the  question,  Who  was  a  good  or 
who  an  ill-reputed  citizen,  they  were  looked  upon  as  of  a  dull 
and  careless  disposition,  and  to  have  little  or  no  sense  of  virtue 
and  honor ;  besides  this,  they  were  to  give  a  good  reason  for  what 
they  said,  and  in  as  few  words  and  as  comprehensive  as  might  be ; 
he  that  failed  of  this,  or  answered  not  to  the  purpose,  had  his 
thumb  bit  by  the  master.  Sometimes  the  Iren  did  this  in  the 
presence  of  the  old  men  and  magistrates,  that  they  might  see 


Chap.  Ill,  §  3.]  PLUTARCH's    LIVES  73 

whether  he  punished  them  justly  and  in  due  measure  or  not,  and 
when  he  did  amiss,  they  would  not  reprove  him  before  the  boys, 
but,  when  they  were  gone,  he  was  called  to  an  account  and  under- 
went correction,  if  he  had  run  far  into  either  of  the  extremes  of 
indulgence  or  severity. 


Their  discipline  continued  still  after  they  were  full-grown  men. 
No  one  was  allowed  to  live  after  his  own  fancy ;  but  the  city  was  a 
sort  of  camp,  in  which  every  man  had  his  share  of  provisions  and 
business  set  out,  and  looked  upon  himself  not  so  much  born  to 
serve  his  own  ends  as  the  interest  of  his  country.  Therefore  if 
they  were  commanded  nothing  else,  they  went  to  see  the  boys 
perform  their  exercises,  to  teach  them  something  useful  or  to  learn 
it  themselves  of  those  who  knew  better.  And  indeed  one  of  the 
greatest  and  highest  blessings  Lycurgus  procured  his  people  was 
the  abundance  of  leisure  which  proceeded  from  his  forbidding  to 
them  the  exercise  of  any  mean  and  mechanical  trade.  Of  the 
money  making  that  depends  on  troublesome  going  about  and  see- 
ing people  and  doing  business,  they  had  no  need  at  all  in  a  state 
where  wealth  obtained  no  honor  or  respect.  The  Helots  tilled 
their  ground  for  them,  and  paid  them  yearly  in  kind  the  appointed 
quantity,  without  any  trouble  of  theirs.  To  this  purpose  there 
goes  a  story  of  a  Lacedaemonian  who,  happening  to  be  at  Athens 
when  the  courts  were  sitting,  was  told  of  a  citizen  that  had  been 
fined  for  living  an  idle  hfe,  and  was  being  escorted  home  in  much 
distress  of  mind  by  his  condoling  friends ;  the  Lacedaemonian  was 
much  surprised  at  it  and  desired  his  friend  to  show  him  the  man 
who  w^as  condemned  for  living  like  a  freeman.  So  much  beneath 
them  did  they  esteem  the  frivolous  devotion  of  time  and  atten- 
tion to  the  mechanical  arts  and  to  money  making. 

It  need  not  be  said  that  upon  the  prohibition  of  gold  and  silver, 
all  lawsuits  immediately  ceased,  for  there  was  now  neither  avarice 
nor  poverty  amongst  them,  but  equahty,  where  every  one's  wants 
were  supplied,  and  independence,  because  those  wants  were  so 
small.  .   .   . 

The  senate,  as  I  said  before,  consisted  of  those  who  were  Lycur- 
gus's  chief  aiders  and  assistants  in  his  plans.  The  vacancies  he 
ordered  to  be  supplied  out  of  the  best  and  most  deserving  men 
past  sixty  years  old,  and  we  need  not  wonder  if  there  was  much 
striving  for  it;  for  what  more  glorious  competition  could  there 
be  amongst  men,  than  one  in  which  it  was  not  contested  who  was 


74  GENERAL  LITERATURE  [Part  I. 

swiftest  among  the  swift  or  strongest  of  the  strong,  but  who  of 
many  wise  and  good  was  wisest  and  best,  and  fittest  to  be  in- 
trusted forever  after,  as  the  reward  of  his  merits,  with  the  supreme 
authority  of  the  commonwealth,  and  with  power  over  the  lives, 
franchises,  and  highest  interests  of  all  his  countrymen?  The 
manner  of  their  election  was  as  follows :  The  people  being  called 
together,  some  selected  persons  were  locked  up  in  a  room  near 
the  place  of  election,  so  contrived  that  they  could  neither  see  nor 
be  seen,  but  could  only  hear  the  noise  of  the  assembly  without; 
for  they  decided  this,  as  most  other  affairs  of  moment,  by  the  shouts 
of  the  people.  This  done,  the  competitors  were  not  brought  in 
and  presented  all  together,  but  one  after  another  by  lot,  and 
passed  in  order  through  the  assembly  without  speaking  a  w^ord. 
Those  who  were  locked  up  had  writing  tables  with  them,  in 
which  they  recorded  and  marked  each  shout  by  its  loudness,  with- 
out knowing  in  favor  of  which  candidate  each  of  them  was  made, 
but  merely  that  they  came  first,  second,  third,  and  so  forth.  He 
who  was  found  to  have  the  most  and  loudest  acclamations  was 
declared  senator  duly  elected. 


SECTION  4 

Numa  Pompilius 

Though  the  pedigrees  of  noble  families  of  Rome  go  back  in 
exact  form  as  far  as  Numa  Pompilius,  yet  there  is  great  diversity 
amongst  historians  concerning  the  time  in  which  he  reigned ;  a 
certain  writer  called  Clodius,  in  a  book  of  his  entitled  Strictures 
on  Chronology,  avers  that  the  ancient  registers  of  Rome  were 
lost  when  the  city  was  sacked  by  the  Gauls,  and  that  those  which 
are  now  extant  were  counterfeited,  to  flatter  and  serve  the  humor 
of  some  men  who  wished  to  have  themselves  derived  from 
some  ancient  and  noble  lineage,  though  in  reality  with  no  claim 
to  it.   .   .   . 

It  was  the  thirty-seventh  year,  counted  from  the  foundation 
of  Rome,  when  Romulus,  then  reigning,  did,  on  the  fifth  day  of 
the  month  of  July,  called  the  Caprotine  Nones,  offer  a  public 
sacrifice  at  the  Goat's  Marsh,  in  presence  of  the  senate  and  people 
of  Rome.  Suddenly  the  sky  was  darkened,  a  thick  cloud  of 
storm  and  rain  settled  on  the  earth ;  the  common  people  fled  in 
affright,  and  were  dispersed ;  and  in  this  whirlwind  Romulus  dis- 


Chap.  Ill,  §  4.]  PLUTARCH's   LIVES  75 

appeared,  his  body  being  never  found  either  living  or  dead.  A 
foul  suspicion  presently  attached  to  the  patricians,  and  rumors 
were  current  among  the  people  as  if  that  they,  weary  of  kingly 
government,  and  exasperated  of  late  by  the  imperious  deportment 
of  Romulus  towards  them  had  plotted  against  his  life  and  made 
him  away,  that  so  they  might  assume  the  authority  and  govern- 
ment into  their  own  hands.   .   .   . 

This  trouble,  being  appeased,  was  followed  by  another,  about 
the  election  of  a  new  king ;  for  the  minds  of  the  original  Romans 
and  the  new  inhabitants  were  not  as  yet  grown  into  that  perfect 
unity  of  temper,  but  that  there  were  diversities  of  factions  amongst 
the  commonalty,  and  jealousies  and  emulations  amongst  the  sena- 
tors ;  for  though  all  agreed  that  it  was  necessary  to  have  a  king, 
yet  what  person  or  of  which  nation  was  matter  of  dispute.   .   .   . 

Thus  did  both  parties  argue  and  dispute  their  cause;  but  lest 
meanwhile  discord,  in  the  absence  of  all  command,  should  occa- 
sion general  confusion,  it  was  agreed  that  the  hundred  and  fifty 
senators  should  interchangeably  execute  the  ofiice  of  supreme 
magistrate,  and  each  in  succession,  with  the  ensigns  of  royalty, 
should  offer  the  solemn  sacrifices  and  despatch  public  business 
for  the  space  of  six  hours  by  day  and  six  by  night ;  which  vicissi- 
tude and  equal  distribution  of  power  would  preclude  all  rivalry 
amongst  the  senators  and  envy  from  the  people,  when  they  should 
behold  one,  elevated  to  the  degree  of  a  king,  levelled  within  the 
space  of  a  day  to  the  condition  of  a  private  citizen.  This  form 
of  government  is  termed,  by  the  Romans,  interregnum.  Nor  yet 
could  they,  by  this  plausible  and  modest  way  of  rule,  escape  sus- 
picion and  clamor  of  the  vulgar,  as  though  they  were  changing 
the  form  of  government  to  an  oligarchy,  and  designing  to  keep 
the  supreme  power  in  a  sort  of  wardship  under  themselves,  with- 
out ever  proceeding  to  choose  a  king.  Both  parties  came  at 
length  to  the  conclusion  that  the  one  should  choose  a  king  out  of 
the  body  of  the  other ;  the  Romans  make  choice  of  a  Sabine,  or 
the  Sabines  name  a  Roman ;  this  was  esteemed  the  best  expedient 
to  put  an  end  to  all  party  spirit,  and  the  prince  who  should  be 
cho  en  would  have  an  equal  affection  to  the  one  party  as  his 
electors  and  to  the  other  as  his  kinsmen.  The  Sabines  remitted 
the  choice  to  the  original  Romans,  and  they,  too,  on  their  part, 
were  more  inclinable  to  receive  a  Sabine  king  elected  by  them- 
selves than  to  see  a  Roman  exalted  by  the  Sabines.  Consulta- 
tions being  accordingly  held,  they  named  Numa  Pompilius,  of 
the  Sabine  race,  a  person  of  that  high  reputation  for  excellence, 


76  GENERAL   LITERATURE  [Part  I. 

that,  though  he  were  not  actually  residing  at  Rome,  yet  he  was 
no  sooner  nominated  than  accepted  by  the  Sabines,  with  accla- 
mation almost  greater  than  that  of  the  electors  themselves. 

The  original  constitution  of  the  priests,  called  Pontifices,  is 
ascribed  unto  Numa,  and  he  himself  was,  it  is  said,  the  first  of 
them;  and  that  they  have  the  name  of  Pontifices  from  potenSy 
powerful,  because  they  attend  the  service  of  the  gods,  who  have 
power  and  command  over  all.   .   .   . 

The  office  of  Pontifex  Maximus,  or  chief  priest,  was  to  declare 
and  interpret  the  divine  law,  or,  rather,  to  preside  over  sacred 
rites ;  he  not  only  prescribed  rules  for  public  ceremony,  but  regu- 
lated the  sacrifices  of  private  persons,  not  suffering  them  to  vary 
from  established  custom,  and  giving  information  to  every  one  of 
what  was  requisite  for  purposes  of  worship  or  supplication.  He 
was  also  guardian  of  the  vestal  virgins,  the  institution  of  whom, 
and  of  their  perpetual  fire,  was  attributed  to  Numa,  who,  perhaps, 
fancied  the  charge  of  pure  and  uncorrupted  flames  would  be  fitly 
intrusted  to  chaste  and  unpolluted  persons,  or  that  fire,  which 
consumes,  but  produces  nothing,  bears  an  analogy  to  the  virgin 
estate.  .  .  . 

The  statutes  prescribed  by  Numa  for  the  vestals  were  these : 
that  they  should  take  a  vow  of  virginity  for  the  space  of  thirty 
years,  the  first  ten  of  which  they  were  to  spend  in  learning  their 
duties,  the  second  ten  in  performing  them,  and  the  remaining  ten 
in  teaching  and  instructing  others.  Thus  the  whole  term  being 
completed,  it  was  lawful  for  them  to  marry,  and,  leaving  the 
sacred  order,  to  choose  any  condition  of  life  that  pleased 
them.   .   .   . 

For  this  condition  he  compensated  by  great  privileges  and  pre- 
rogatives ;  as  that  they  had  power  to  make  a  will  in  the  lifetime 
of  their  father ;  that  they  had  a  free  administration  of  their  own 
affairs  without  guardian  or  tutor,  which  was  the  privilege  of 
women  who  were  the  mothers  of  three  children;  when  they  go 
abroad,  they  have  the  fasces  carried  before  them ;  and  if  in  their 
walks  they  chance  to  meet  a  criminal  on  his  way  to  execution,  it 
saves  his  life,  upon  oath  made  that  the  meeting  was  an  accidental 
one,  and  not  concerted  or  of  set  purpose. 

There  was  yet  a  farther  use  of  the  priests,  and  that  was  to  give 
people  directions  in  the  national  usages  at  funeral  rites.     Numa 


Chap.  Ill,  §  4.]  PLUTARCH's   LIVES  77 

taught  them  to  regard  these  offices,  not  as  a  pollution,  but  as  a 
duty  paid  to  the  gods  below,  into  whose  hands  the  better  part  of 
us  is  transmitted.   .   .   . 

Numa  also  prescribed  rules  for  regulating  the  days  of  mourn- 
ing, according  to  certain  times  and  ages.  As,  for  example,  a  child 
of  three  years  was  not  to  be  mourned  for  at  all ;  one  older,  up  to 
ten  years,  for  as  many  months  as  it  was  years  old ;  and  the  longest 
time  of  mourning  for  any  person  whatsoever  was  not  to  exceed 
the  term  of  ten  months ;  which  was  the  time  appointed  for  women 
that  lost  their  husbands  to  continue  in  widowhood.  If  any 
married  again  before  that  time,  by  the  laws  of  Numa  she  was  to 
sacrifice  a  cow  big  with  calf. 

Numa,  also,  was  founder  of  several  other  orders  of  priests,  two 
of  which  I  shall  mention,  the  Sahi  and  the  Feciales,  which  are 
among  the  clearest  proofs  of  the  devoutness  and  sanctity  of  his 
character.  These  Fecials,  or  guardians  of  peace,  seem  to  have 
had  their  name  from  their  office,  which  was  to  put  a  stop  to  dis- 
putes by  conference  and  speech ;  for  it  was  not  allowable  to  take 
up  arms  until  they  had  declared  all  hopes  of  accommodation  to 
be  at  an  end,  for  in  Greek,  too,  we  call  it  peace  when  disputes  are 
settled  by  w^ords,  and  not  by  force.  The  Romans  commonly 
despatched  the  Fecials,  or  heralds,  to  those  who  had  offered  them 
injury,  requesting  satisfaction;  and,  in  case  they  refused,  they 
then  called  the  gods  to  witness,  and,  with  imprecations  upon 
themselves  and  their  country  should  they  be  acting  unjustly,  so 
declared  war ;  against  their  will,  or  without  their  consent,  it  was 
lawful  neither  for  soldier  nor  king  to  take  up  arms ;  the  war  was 
begun  with  them,  and  when  they  had  first  handed  it  over  to  the 
commander  as  a  just  quarrel,  then  his  business  was  to  deliberate 
of  the  manner  and  ways  to  carry  it  on. 


It  was  he,  also,  that  built  the  temples  of  Faith  and  Terminus, 
and  taught  the  Romans  that  the  name  of  Faith  was  the  most 
solemn  oath  that  they  could  swear.  They  still  use  it ;  and  to  the 
god  Terminus,  or  Boundary,  they  offer  to  this  day  both  public 
and  private  sacrifices,  upon  the  borders  and  stone-marks  of  their 
land ;  living  victims  now,  though  anciently  those  sacrifices  were 
solemnized  without  blood ;  for  Numa  reasoned  that  the  god  of 
boundaries,  who  watched  over  peace,  and  testified  to  fair  dealing, 
should  have  no  concern  with  blood.  It  is  very  clear  that  it  was 
this  king  who  first  prescribed  bounds  to  the  territory  of  Rome; 


78  GENERAL   LITERATURE  [Part  I. 

for  Romulus  would  but  have  openly  betrayed  how  much  he  had 
encroached  on  his  neighbors'  lands,  had  he  ever  set  limits  to  his 
own ;  for  boundaries  are,  indeed,  a  defence  to  those  who  choose 
to  observe  them,  but  are  only  a  testimony  against  the  dishonesty 
of  those  who  break  through  them.  The  truth  is,  the  portion  of 
lands  which  the  Romans  possessed  at  the  beginning  was  very 
narrow,  until  Romulus  enlarged  them  by  war;  all  those  acquisi- 
tions Numa  now  divided  amongst  the  indigent  commonalty,  wish- 
ing to  do  away  with  that  extreme  want  which  is  a  compulsion  to 
dishonesty,  and,  by  turning  the  people  to  husbandry,  to  bring 
them,  as  well  as  their  lands,  into  better  order.  For  there  is  no 
employment  that  gives  so  keen  and  quick  a  relish  for  peace  as 
husbandry  and  a  country  life,  which  leave  in  men  all  that  kind 
of  courage  that  makes  them  ready  to  fight  in  defence  of  their  own, 
while  it  destroys  the  license  that  breaks  out  into  acts  of  injustice 
and  rapacity.  Numa,  therefore,  hoping  agriculture  would  be  a 
sort  of  charm  to  captivate  the  affections  of  his  people  to  peace, 
and  viewing  it  rather  as  a  means  to  moral  than  to  economical 
profit,  divided  all  the  lands  into  several  parcels,  to  which  he  gave 
the  name  of  pagus,  or  parish,  and  over  every  one  of  them  he  or- 
dained chief  overseers ;  and,  taking  a  delight  sometimes  to  inspect 
his  colonies  in  person,  he  formed  his  judgment  of  every  man's 
habits  by  the  results ;  of  which  being  witness  himself,  he  preferred 
those  to  honors  and  employments  who  had  done  well,  and  by 
rebukes  and  reproaches  incited  the  indolent  and  careless  to  im- 
provement. But  of  all  his  measures  the  most  commended  was 
his  distribution  of  the  people  by  their  trades  into  companies  or 
guilds ;  for  as  the  city  consisted,  or  rather  did  not  consist  of,  but 
was  divided  into  two  different  tribes,  the  diversity  between 
which  could  not  be  effaced  and  in  the  mean  time  prevented  all 
unity  and  caused  perpetual  tumult  and  ill-blood,  reflecting  how 
hard  substances  that  do  not  readily  mix  when  in  the  lump  may, 
by  being  beaten  into  powder,  in  that  minute  form  be  combined, 
he  resolved  to  divide  the  whole  population  into  a  number  of  small 
divisions,  and  thus  hoped,  by  introducing  other  distinctions,  to 
obliterate  the  original  and  great  distinction,  which  would  be  lost 
among  the  smaller.  So,  distinguishing  the  whole  people  by  the 
several  arts  and  trades,  he  formed  the  companies  of  musicians, 
goldsmiths,  carpenters,  dyers,  shoemakers,  skinners,  braziers,  and 
potters ;  and  all  other  handicraftsmen  he  composed  and  reduced 
into  a  single  company,  appointing  every  one  their  proper  courts, 
councils,  and  religious  observances.     In  this  manner  all  factious 


Chap.  Ill,  §  5.]  PLUTARCH's   LIVES  79 

distinctions  began,  for  the  first  time,  to  pass  out  of  use,  no  person 
any  longer  being  either  thought  of  or  spoken  of  under  the  notion 
of  a  Sabine  or  a  Roman,  a  RomuHan  or  a  Tatian ;  and  the  new 
division  became  a  source  of  general  harmony  and  intermixture. 

He  is  also  much  to  be  commended  for  the  repeal,  or  rather 
amendment,  of  that  law  which  gives  power  to  fathers  to  sell  their 
children;  he  exempted  such  as  were  married,  conditionally  that 
it  had  been  with  the  liking  and  consent  of  their  parents;  for  it 
seemed  a  hard  thing  that  a  woman  who  had  given  herself  in 
marriage  to  a  man  whom  she  judged  free  should  afterwards  find 
herself  living  with  a  slave. 


SECTION  5 

Solon 


The  Athenians,  now  the  Cylonian  sedition  was  over  and  the 
polluted  gone  into  banishment,  fell  into  their  old  quarrels  about 
government,  there  being  as  many  different  parties  as  there  were 
diversities  in  the  country.  The  Hill  quarter  favored  democracy, 
the  Plain,  oligarchy,  and  those  that  lived  by  the  Seaside  stood  for 
a  mixed  sort  of  government,  and  so  hindered  either  of  the  other 
parties  from  prevailing.  And  the  disparity  of  fortune  between 
the  rich  and  the  poor,  at  that  time,  also  reached  its  height;  so 
that  the  city  seemed  to  be  in  a  truly  dangerous  condition,  and  no 
other  means  for  freeing  it  from  disturbances  and  settling  it  to  be 
possible  but  a  despotic  power.  All  the  people  were  indebted  to  the 
rich;  and  either  they  tilled  their  land  for  their  creditors,  paying 
them  a  sixth  part  of  the  increase,  and  were,  therefore,  called  Hec- 
temorii  and  Thetes,  or  else  they  engaged  their  body  for  the  debt, 
and  might  be  seized,  and  either  sent  into  slavery  at  home,  or  sold 
to  strangers ;  some  (for  no  law  forbade  it)  were  forced  to  sell  their 
children,  or  fly  their  country  to  avoid  the  cruelty  of  their  credi- 
tors ;  but  the  most  part  and  the  bravest  of  them  began  to  combine 
together  and  encourage  one  another  to  stand  to  it,  to  choose  a 
leader,  to  liberate  the  condemned  debtors,  divide  the  land,  and 
change  the  government. 

Then  the  wisest  of  the  Athenians,  perceiving  Solon  was  of  all 
men  the  only  one  not  implicated  in  the  troubles,  that  he  had  not 
joined  in  the  exactions  of  the  rich,  and  was  not  involved  in  the 


80  GENERAL   LITERATURE  [Part  I. 

necessities  of  the  poor,  pressed  him  to  succor  the  commonwealth 
and  compose  the  differences.  Though  Phanias  the  Lesbian 
affirms,  that  Solon,  to  save  his  country,  put  a  trick  upon  both 
parties,  and  privately  promised  the  poor  a  division  of  the  lands, 
and  the  rich  security  for  their  debts.  Solon,  however,  himself 
says,  that  it  was  reluctantly  at  first  that  he  engaged  in  state  affairs, 
being  afraid  of  the  pride  of  one  party  and  the  greediness  of  the 
other ;  he  was  chosen  archon,  however,  after  Philombrotus,  and 
empowered  to  be  an  arbitrator  and  lawgiver ;  the  rich  consenting 
because  he  was  wealthy,  the  poor  because  he  was  honest.   .   .   . 

And,  therefore,  when  he  was  afterwards  asked  if  he  had  left 
the  Athenians  the  best  laws  that  could  be  given,  he  replied,  "The 
best  they  could  receive.  .  ,  ."  For  the  first  thing  which  he  settled 
was,  that  what  debts  remained  should  be  forgiven,  and  no  man, 
for  the  future,  should  engage  the  body  of  his  debtor  for  security. 
Though  some,  as  Androtion,  affirm  that  the  debts  were  not  can- 
celled, but  the  interest  only  lessened,  which  sufficiently  pleased 
the  people;  so  that  they  named  this  benefit  the  Seisacthea, 
together  with  the  enlarging  their  measures,  and  raising  the  value 
of  their  money;  for  he  made  a  pound,  which  before  passed  for 
seventy-three  drachmas,  go  for  a  hundred;  so  that,  though  the 
number  of  pieces  in  the  payment  was  equal,  the  value  was  less; 
which  proved  a  considerable  benefit  to  those  that  were  to  dis- 
charge great  debts,  and  no  loss  to  the  creditors.  But  most  agree 
that  it  was  the  taking  off  the  debts  that  was  called  Seisacthea, 
which  is  confirmed  by  some  places  in  his  poem,  where  he  takes 
honor  to  himself,  that 

The  mortgage-stones  that  covered  her,  by  me 
Removed,  —  the  land  that  was  a  slave  is  free : 

that  some  who  had  been  seized  for  their  debts  he  had  brought 
back  from  other  countries,  where 

—  so  far  their  lot  to  roam, 
They  had  forgot  the  language  of  their  home ; 

and  some  he  had  set  at  liberty. 

Who  here  in  shameful  servitude  were  held. 

While  he  was  designing  this,  a  most  vexatious  thing  happened; 
for  when  he  had  resolved  to  take  off  the  debts,  and  was  consider- 
ing the  proper  form  and  fit  beginning  for  it,  he  told  some  of  his 
friends,  Conon,  Clinias,  and  Hipponicus,  in  whom  he  had  a  great 
deal  of  confidence,  that  he  would  not  meddle  with  the  lands,  but 


Chap.  Ill,  §  5.]         .  PLUTARCH's   LIVES  81 

only  free  the  people  from  their  debts ;  upon  which  they,  using  their 
advantage,  made  haste  and  borrowed  some  considerable  sums  of 
money,  and  purchased  some  large  farms;  and  when  the  law  was 
enacted,  they  kept  the  possessions,  and  would  not  return  the 
money ;  which  brought  Solon  into  great  suspicion  and  dislike,  as 
if  he  himself  had  not  been  abused,  but  was  concerned  in  the  con- 
trivance. But  he  presently  stopped  this  suspicion,  by  releasing 
his  debtors  of  five  talents  (for  he  had  lent  so  much),  accordiug  to 
the  law ;  others,  as  Polyzelus  the  Rhodian,  say  fifteen ;  his  friends, 
however,  were  ever  afterward  called  Chreocopidse,  repudiators. 

In  this  he  pleased  neither  party,  for  the  rich  were  angry  for 
their  money,  and  the  poor  that  the  land  was  not  divided,  and,  as 
Lycurgus  ordered  in  his  commonwealth,  all  men  reduced  to 
equality.   ... 

Soon,  however,  becoming  sensible  of  the  good  that  was  done, 
they  laid  by  their  grudges,  made  a  public  sacrifice,  calling  it 
Seisacthea,  and  chose  Solon  to  new-model  and  make  laws  for  the 
commonwealth,  giving  him  the  entire  power  over  everything, 
their  magistracies,  their  assemblies,  courts,  and  councils ;  that  he 
should  appoint  the  number,  times  of  meeting,  and  what  estate 
they  must  have  that  could  be  capable  of  these,  and  dissolve  or 
continue  any  of  the  present  constitutions,  according  to  his  pleasure. 

First,  then,  he  repealed  all  Draco's  laws,  except  those  concern- 
ing homicide,  because  they  were  too  severe,  and  the  punishments 
too  great;  for  death  was  appointed  for  almost  all  offences,  inso- 
much that  those  that  were  convicted  of  idleness  were  to  die,  and 
those  that  stole  a  cabbage  or  an  apple  to  suffer  even  as  villains 
that  committed  sacrilege  or  murder.  So  that  Demades,  in  after 
time,  was  thought  to  have  said  very  happily,  that  Draco's  laws 
were  written  not  with  ink  but  blood ;  and  he  himself,  being  once 
asked  why  he  made  death  the  punishment  of  most  offences,  re- 
plied, "Small  ones  deserve  that,  and  I  have  no  higher  for  the 
greater  crimes." 

Next,  Solon,  being  willing  to  continue  the  magistracies  in  the 
hands  of  the  rich  men,  and  yet  receive  the  people  into  the  other 
part  of  the  government,  took  an  account  of  the  citizens'  estates, 
and  those  that  were  worth  five  hundred  measures  of  fruit,  dry  and 
liquid,  he  placed  in  the  first  rank,  calling  them  Pentacosiomedimni ; 
those  that  could  keep  an  horse,  or  were  worth  three  hundred 
measures,  were  named  Hippada  Teluntes,  and  made  the  second 
class ;  the  Zeugitae,  that  had  two  hundred  measures,  were  in  the 
third;    and  all  the  others  were  called  Thetes,  who  were  not  ad- 


82  GENERAL    LITERATURE  [Part  I. 

mitted  to  any  office,  but  could  come  to  the  assembly,  and  act  as 
jurors ;  which  at  first  seemed  nothing,  but  afterwards  was  found 
an  enormous  privilege,  as  almost  every  matter  of  dispute  came 
before  them  in  this  latter  capacity.  Even  in  the  cases  which  he 
assigned  to  the  archon's  cognizance,  he  allowed  an  appeal  to  the 
courts.  Besides,  it  is  said  that  he  was  obscure  and  ambiguous  in 
the  wording  of  his  laws,  on  purpose  to  increase  the  honor  of  his 
courts;  for  since  their  differences  could  not  be  adjusted  by  the 
letter,  they  would  have  to  bring  all  their  causes  to  the  judges, 
who  thus  were  in  a  manner  masters  of  the  laws.  And  for  the 
greater  security  of  the  weak  commons,  he  gave  general  liberty 
of  indicting  for  an  act  of  injury ;  if  any  one  was  beaten,  maimed, 
or  suffered  any  violence,  any  man  that  would  and  was  able  might 
prosecute  the  wrong-doer;  intending  by  this  to  accustom  the 
citizens,  like  members  of  the  same  body,  to  resent  and  be  sensible 
of  one  another's  injuries.  And  there  is  a  saying  of  his  agreeable 
to  his  law,  for,  being  asked  what  city  was  best  modelled,  "That," 
said  he,  "  where  those  that  are  not  injured  try  and  punish  the 
unjust  as  much  as  those  that  are." 

When  he  had  constituted  the  Areopagus  of  those  who  had  been 
yearly  archons,  of  which  he  himself  was  a  member  therefore,  observ- 
ing that  the  people,  now  free  from  their  debts,  were  unsettled 
and  imperious,  he  formed  another  council  of  four  hundred,  a 
hundred  out  of  each  of  the  four  tribes,  which  was  to  inspect  all 
matters  before  they  were  propounded  to  the  people,  and  to  take 
care  that  nothing  but  what  had  been  first  examined  should  be 
brought  before  the  general  assembly.  The  upper  council,  or, 
Areopagus,  he  made  inspectors  and  keepers  of  the  laws,  conceiv- 
ing that  the  commonwealth,  held  by  these  two  councils,  like 
anchors,  would  be  less  liable  to  be  tossed  by  tumults,  and  the 
people  be  more  quiet.  Such  is  the  general  statement,  that  Solon 
instituted  the  Areopagus ;  which  seems  to  be  confirmed,  because 
Draco  makes  no  mention  of  the  Areopagites,  but  in  all  causes  of 
blood  refers  to  the  Ephetse ;  yet  Solon's  thirteenth  table  contains 
the  eighth  law  set  down  in  these  very  w^ords :  "  Whoever  before 
Solon's  archonship  were  disfranchised,  let  them  be  restored,  except 
those  that,  being  condemned  by  the  Areopagus,  Ephetse,  or  in  the 
Prytaneum  by  the  kings,  for  homicide,  murder,  or  designs  against 
the  government,  were  in  banishment  when  this  law  was  made;" 
and  these  words  seem  to  show  that  the  Areopagus  existed  before 
Solon's  laws,  for  who  could  be  condemned  by  that  council  before 
his  time,  if  he  was  the  first  that  instituted  the  court  ?  unless,  which 


Chap.  Ill,  §  5.]  PLUTARCH  S    LIVES  83 

is  probable,  there  is  some  ellipsis,  or  want  of  precision  in  the 
language,  and  it  should  run  thus :  —  "  Those  that  are  convicted 
of  such  offences  as  belong  to  the  cognizance  of  the  Areopagites, 
Ephetse,  or  the  Prytanes,  when  this  law  was  made,''  shall  remain 
still  in  disgrace,  whilst  others  are  restored ;  of  this  the  reader  must 
judge. 

Amongst  his  other  laws,  one  is  very  peculiar  and  surprising, 
which  disfranchises  all  who  stand  neuter  in  a  sedition;  for  it 
seems  he  would  not  have  any  one  remain  insensible  and  regardless 
of  the  public  good,  and  securing  his  private  affairs,  glory  that  he 
has  no  feeling  of  the  distempers  of  his  country ;  but  at  once  join 
with  the  good  party  and  those  that  have  the  right  upon  their  side, 
assist  and  venture  with  them,  rather  than  keep  out  of  harm's 
way  and  watch  who  would  get  the  better.  It  seems  an  absurd 
and  foolish  law  which  permits  an  heiress,  if  her  lawful  husband 
fail  her,  to  take  his  nearest  kinsman ;  yet  some  say  this  law  was 
well  contrived  against  those  who,  conscious  of  their  own  unfitness, 
yet,  for  the  sake  of  the  portion,  would  match  with  heiresses,  and 
make  use  of  law  to  put  a  violence  upon  nature;  for  now,  since 
she  can  quit  him  for  whom  she  pleases,  they  would  either  abstain 
from  such  marriages,  or  continue  them  with  disgrace,  and  suffer 
for  their  covetousness  and  designed  affront ;  it  is  well  done,  more- 
over, to  confine  her  to  her  husband's  nearest  kinsman,  that  the 
children  may  be  of  the  same  family.   .   .   . 

In  all  other  marriages  he  forbade  dowries  to  be  given;  the 
wife  was  to  have  three  suits  of  clothes,  a  little  inconsiderable 
household  stuff,  and  that  was  all ;  for  he  would  not  have  marriages 
contracted  for  gain  or  an  estate,  but  for  pure  love,  kind  affection 
and  birth  of  children.   .   .   . 

Another  commendable  law  of  Solon's  is  that  which  forbids  men 
to  speak  evil  of  the  dead ;  for  it  is  pious  to  think  the  deceased 
sacred,  and  just,  not  to  meddle  with  those  that  are  gone,  and 
politic,  to  prevent  the  perpetuity  of  discord.  He  likewise  forbade 
them  to  speak  evil  of  the  living  in  the  temples,  the  courts  of  jus- 
tice, the  public  offices,  or  at  the  games,  or  else  to  pay  three  drachmas 
to  the  person,  and  two  to  the  public.  For  never  to  be  able  to  con- 
trol passion  shows  a  weak  nature  and  ill-breeding;  and  always 
to  moderate  it  is  very  hard,  and  to  some  impossible.  And  laws 
must  look  to  possibilities,  if  the  maker  designs  to  punish  few  in 
order  to  their  amendment,  and  not  many  to  no  purpose. 

He  is  likewise  much  commended  for  his  law  concerning  wills; 
for  before  him  none  could  be  made,  but  all  the  wealth  and  estate 


84  GENERAL   LITERATURE  [Part  I. 

of  the  deceased  belonged  to  his  family;  but  he  by  permitting 
them,  if  they  had  no  children,  to  bestow  it  on  whom  they  pleased, 
showed  that  he  esteemed  friendship  a  stronger  tie  than  kindred, 
and  affection  than  necessity ;  and  made  every  man's  estate  truly 
his  own.  Yet  he  allowed  not  all  sorts  of  legacies,  but  those  only 
which  were  not  extorted  by  the  frenzy  of  a  disease,  charms,  im- 
prisonment, force,  or  the  persuasions  of  a  wife ;  with  good  reason 
thinking  that  being  seduced  into  wrong  was  as  bad  as  being  forced, 
and  that  between  deceit  and  necessity,  flattery  and  compulsion, 
there  was  little  difference,  since  both  may  equally  suspend  the 
exercise  of  reason. 

He  regulated  the  walks,  feasts,  and  mourning  of  the  women, 
and  took  away  everything  that  was  either  unbecoming  or  im- 
modest; when  they  walked  abroad,  no  more  than  three  articles 
of  dress  were  allowed  them ;  an  obol's  worth  of  meat  and  drink ; 
and  no  basket  above  a  cubit  high;  and  at  night  they  were  not 
to  go  about  unless  in  a  chariot  with  a  torch  before  them.  Mourners 
tearing  themselves  to  raise  pity,  and  set  wailings,  and  at  one 
man's  funeral  to  lament  for  another,  he  forbade.  To  offer  an  ox 
at  the  grave  was  not  permitted,  nor  to  bury  above  three  pieces 
of  dress  with  the  body,  or  visit  the  tombs  of  any  besides  their  own 
family,  unless  at  the  very  funeral;  most  of  which  are  likewise 
forbidden  by  our  laws,  but  this  is  further  added  in  ours,  that  those 
that  are  convicted  of  extravagance  in  their  mournings  are  to  be 
punished  as  soft  and  effeminate  by  the  censors  of  women. 

Observing  the  city  to  be  filled  with  persons  that  flocked  from 
all  parts  into  Attica  for  security  of  living,  and  that  most  of  the 
country  was  barren  and  unfruitful,  and  that  traders  at  sea  import 
nothing  to  those  that  could  give  them  nothing  in  exchange,  he 
turned  his  citizens  to  trade,  and  made  a  law  that  no  son  be  obliged 
to  relieve  a  father  who  had  not  bred  him  up  to  any  calling.  It  is 
true,  Lycurgus,  having  a  city  free  from  all  strangers,  and  land, 
according  to  Euripides, 

Large  for  large  hosts,  for  twice  their  number  much, 

and,  above  all,  an  abundance  of  laborers  about  Sparta,  who 
should  not  be  left  idle,  but  be  kept  down  with  continual  toil  and 
work,  did  well  to  take  off  his  citizens  from  laborious  and  mechani- 
cal occupations,  and  keep  them  to  their  arms,  and  teach  them 
only  the  art  of  war.  But  Solon,  fitting  his  laws  to  the  state  of  things, 
and  not  making  things  to  suit  his  laws,  and  finding  the  ground 
scarce  rich  enough  to  maintain  the  husbandmen,  and  altogether 


Chap.  Ill,  §  6.]  PLUTARCH's   LIVES  85 

incapable  of  feeding  an  unoccupied  and  leisured  multitude,  brought 
trades  into  credit,  and  ordered  the  Areopagites  to  examine  how 
every  man  got  his  living,  and  chastise  the  idle.  But  that  law  was 
yet  more  rigid  which,  as  Heraclides  Ponticus  delivers,  declared 
the  sons  of  unmarried  mothers  not  obliged  to  relieve  their  fathers ; 
for  he  that  avoids  the  honorable  form  of  union  shows  that  he 
does  not  take  a  woman  for  children,  but  for  pleasure,  and  thus 
gets  his  just  reward,  and  has  taken  away  from  himself  every  title 
to  upbraid  his  children,  to  whom  he  has  made  their  very  birth 
a  scandal  and  reproach. 

Solon's  laws  in  general  about  women  are  his  strangest;  for  he 
permitted  any  one  to  kill  an  adulterer  that  found  him  in  the  act ; 
but  if  any  one  forced  a  free  woman,  a  hundred  drachmas  was  the 
fine ;  if  he  enticed  her,  twenty ;  except  those  that  sell  themselves 
openly,  that  is,  harlots,  who  go  openly  to  those  that  hire  them. 
He  made  it  unlawful  to  sell  a  daughter  or  a  sister,  unless,  being 
yet  unmarried,  she  was  found  wanton.  Now  it  is  irrational  to 
punish  the  same  crime  sometimes  very  severely  and  without 
remorse,  and  sometimes  very  lightly,  and  as  it  were  in  sport,  with 
a  trivial  fine;  unless  there  being  little  money  then  in  Athens, 
scarcity  made  those  mulcts  the  more  grievous  punishment.  In 
the  valuation  for  sacrifices,  a  sheep  and  a  bushel  were  both  esti- 
mated at  a  drachma ;  the  victor  in  the  Isthmian  games  was  to  have 
for  reward  an  hundred  drachmas ;  the  conqueror  in  the  Olympian, 
five  hundred ;  he  that  brought  a  wolf,  five  drachmas ;  for  a  whelp, 
one;  the  former  sum,  as  Demetrius  the  Phalerian  asserts,  was 
the  value  of  an  ox,  the  latter,  of  a  sheep.  The  prices  which  Solon, 
in  his  sixteenth  table,  sets  on  choice  victims,  were  naturally  far 
greater ;  yet  they,  too,  are  very  low  in  comparison  of  the  present. 
The  Athenians  were,  from  the  beginning,  great  enemies  to  wolves, 
their  fields  being  better  for  pasture  than  corn.  Some  affirm  their 
tribes  did  not  take  their  names  from  the  sons  of  Ion,  but  from 
the  different  sorts  of  occupation  that  they  followed ;  the  soldiers 
were  called  Hoplitse,  the  craftsmen  Ergades,  and,  of  the  remain- 
ing two,  the  farmers  Gedeontes,  and  the  shepherds  and  graziers 
iEgicores. 

Since  the  country  has  but  few  rivers,  lakes,  or  large  springs, 
and  many  used  wells  which  they  had  dug,  there  was  a  law  made, 
that,  where  there  was  a  public  well  within  a  hippicon,  that  is, 
four  furlongs,  all  should  draw  at  that;  but  when  it  was  farther 
off,  they  should  try  and  procure  a  well  of  their  own ;  and  if  they 
had  dug  ten  fathoms  deep  and  could  find  no  water,  they  had 


86  GENERAL   LITERATURE  [Part  I. 

liberty  to  fetch  a  pitcherful  of  four  gallons  and  a  half  in  a  day 
from  their  neighbors';  for  he  thought  it  prudent  to  make  pro- 
vision against  want,  but  not  to  supply  laziness.  He  showed  skill 
in  his  orders  about  planting,  for  any  one  that  would  plant  another 
tree  was  not  to  set  it  within  five  feet  of  his  neighbor's  field ;  but 
if  a  fig  or  an  olive,  not  within  nine ;  for  their  roots  spread  farther, 
nor  can  they  be  planted  near  all  sorts  of  trees  without  damage, 
for  they  draw  away  the  nourishment,  and  in  some  cases  are 
noxious  by  their  effluvia.  He  that  would  dig  a  pit  or  a  ditch 
was  to  dig  it  at  the  distance  of  its  own  depth  from  his  neighbor's 
ground ;  and  he  that  would  raise  stocks  of  bees  was  not  to  place 
them  within  three  hundred  feet  of  those  which  another  had  already 
raised. 

He  permitted  only  oil  to  be  exported,  and  those  that  exported 
any  other  fruit,  the  archon  was  solemnly  to  curse,  or  else  pay  an 
hundred  drachmas  himself ;  and  this  law  was  written  in  his  first 
table,  and,  therefore,  let  none  think  it  incredible,  as  some  affirm, 
that  the  exportation  of  figs  was  once  unlawful,  and  the  informer 
against  the  delinquents  called  a  sycophant.  He  made  a  law,  also, 
concerning  hurts  and  injuries  from  beasts,  in  which  he  com- 
mands the  master  of  any  dog  that  bit  a  man  to  deliver  him  up 
with  a  log  about  his  neck,  four  and  a  half  feet  long;  a  happy 
device  for  men's  security.  The  law  concerning  naturalizing 
strangers  is  of  doubtful  character ;  he  permitted  only  those  to  be 
made  free  of  Athens  who  were  in  perpetual  exile  from  their  own 
country,  or  came  with  their  whole  family  to  trade  there ;  this  he 
did,  not  to  discourage  strangers,  but  rather  to  invite  them  to  a 
permanent  participation  in  the  privileges  of  the  government ;  and, 
besides,  he  thought  those  would  prove  the  more  faithful  citizens 
who  had  been  forced  from  their  own  country,  or  voluntarily  for- 
sook it.  The  law  of  public  entertainment  {parasitein  is  his  name 
for  it)  is  also  peculiarly  Solon's;  for  if  any  man  came  often,  or 
if  he  that  was  invited  refused,  they  were  punished,  for  he  con- 
cluded that  one  was  greedy,  the  other  a  contemner  of  the  state. 

All  his  laws  he  established  for  an  hundred  years,  and  wrote 
them  on  wooden  tables  or  rollers,  named  axones,  which  might  be 
turned  round  in  oblong  cases;  some  of  their  reHcs  were  in  my 
time  still  to  be  seen  in  the  Prytaneum,  or  common  hall,  at  Athens. 
These,  as  Aristotle  states,  were  called  cyrbes,  and  there  is  a  pas- 
sage of  Cratinus  the  comedian,  — 

By  Solon,  and  by  Draco,  if  you  please, 

Whose  Cyrbes  make  the  fibres  that  parch  our  peas. 


Chap.  Ill,  §  5.]  PLUTARCH's    LIVES  87 

But  some  say  those  are  properly  cyrbes,  which  contain  laws 
concerning  sacrifices  and  the  rites  of  religion,  and  all  the  others 
axones.  The  council  all  jointly  swore  to  confirm  the  laws,  and 
every  one  of  the  Thesmothetae  vowed  for  himself  at  the  stone  in 
the  market-place,  that  if  he  broke  any  of  the  statutes,  he  would 
dedicate  a  golden  statue,  as  big  as  himself,  at  Delphi. 

Observing  the  irregularity  of  the  months,  and  that  the  moon 
does  not  always  rise  and  set  with  the  sun,  but  often  in  the  same 
day  overtakes  and  gets  before  him,  he  ordered  the  day  should  be 
named  the  Old  and  New,  attributing  that  part  of  it  which  was 
before  the  conjunction  to  the  old  moon,  and  the  rest  to  the  new, 
he  being  the  first,  it  seems,  that  understood  that  verse  of  Homer,  — 

The  end  and  the  beginning  of  the  month,  — 

and  the  following  day  he  called  the  new  moon.  After  the  twentieth 
he  did  not  count  by  addition,  but,  like  the  moon  itself  in  its  wane, 
by  subtraction ;   thus  up  to  the  thirtieth. 

Now  when  these  laws  were  enacted,  and  some  came  to  Solon 
every  day,  to  commend  or  dispraise  them,  and  to  advise,  if  pos- 
sible, to  leave  out  or  put  in  something,  and  many  criticised,  and 
desired  him  to  explain,  and  tell  the  meaning  of  such  and  such  a 
passage,  he,  knowing  that  to  do  it  was  useless,  and  not  to  do  it 
would  get  him  ill-will,  and  desirous  to  bring  himself  out  of  all 
straits,  and  to  escape  all  displeasure  and  exceptions,  it  being  a  hard 
thing,  as  he  himself  says. 

In  great  affairs  to  satisfy  all  sides, 

as  an  excuse  for  travelling,  bought  a  trading  vessel,  and,  having 
leave  for  ten  years'  absence,  departed,  hoping  that  by  that  time 
his  laws  would  have  become  familiar. 


Chapter  IV 
CESAR'S  COMMENTARIES! 

BOOK   V 

The  Argument 

I.  Caesar  orders  a  large  fleet  of  peculiarly  constructed  ships  to  be  built ; 
proceeds  against  the  Pirustse ;  they  submit.  —  II.  Returns  into  Hither 
Gaul ;  marches  against  the  Treviri.  —  III.     Indutiomarus  and  Cingetorix. 

—  V.  Caesar  goes  to  port  Itius  ;  his  policy  in  taking  certain  Gallic  chief- 
tains with  him  to  Britain.  —  VI.  Dumnorix,  who  was  to  have  been  in 
that  number,  by  craft  and  violence,  escapes  attending  Caesar,  but  is 
slain.  —  VII.     Caesar  proceeds  on  his  second  expedition  against  Britain. 

—  IX.  The  bold  resistance  of  the  Britons ;  they  are  defeated.  —  X. 
The  Roman  fleet  suffers  severely  in  a  storm.  —  XI.  Caesar  gives  orders 
to  Labienus  to  build  more  ships ;  Cassivellaunus.  —  XII. -XIV.  De- 
scription of  Britain  and  its  inhabitants.  —  XVII.  The  Britains  again 
prepare  for  war,  and  receive  a  signal  defeat.  —  XVIII.  Caesar  advances 
into  the  territories  of  Cassivellaunus  as  far  as  the  Thames;  an  engage- 
ment with  that  prince.  —  XIX.  The  stratagem  of  Cassivellaunus.  — 
XX.  The  Trinobantes  send  ambassadors  to  Caesar  respecting  the  conduct 
of  Cassivellaunus  towards  Mandubratius.  —  XXII.  The  latter  induces 
four  princes  of  Cantium  to  attack  the  Romans,  by  whom  they  are  de- 
feated. —  XXIII.  Caesar  receives  hostages,  and  leads  back  his  army 
into  Gaul.  —  XXIV.  He  quarters  his  forces  contrary  to  his  custom,  in 
several  divisions.  —  XXV.  Tasgetius.  —  XXVI.  The  revolt  of  Am- 
biorix  and  Cativolcus.  —  XXVII.  Ambiorix  defends  himself  in  reference 
to  his  share  in  the  Gallic  combination.  —  XXVIII.-XXXI.  Dispute 
between  Titurius  and  Cotta.  —  XXXII.  The  valor  and  conduct  of 
Cotta.  —  XXXVIII.-XLII.  The  quarters  of  Cicero  attacked  by  the 
Eburones  ;  he  sends  intelligence  to  Caesar.  —  XLIV.  The  noble  conduct 
of  Pulfio  and  Varenus.  —  XLVIII.-LII.  Caesar  marches  to  the  relief 
of  Cicero  ;  defeats  the  Eburones.  —  LIII.  Indutiomarus  is  thereby  de- 
terred from  attacking  the  camp  of  Labienus.  —  LVI.-LVIII.  Re-en- 
forced, Indutiomarus  attacks  Labienus ;  his  forces  are  routed,  and  he  is 
slain ;   Gaul  becomes  more  tranquil. 

Chap.  XII.  —  The  interior  portion  of  Britain  is  inhabited  by 
those  of  whom  they  say  that  it  is  handed  down  by  tradition  that 
they  were  born  in  the  island  itself  :  the  maritime  portion  by  those 
who  had  passed  over  from  the  country  of  the  Belgse  for  the  purpose 
of  plunder  and  making  war ;  almost  all  of  whom  are  called  by  the 
names  of  those  states  from  which  being  sprung  they  went  thither, 
and  having  waged  war,  continued  there  and  began  to  cultivate  the 
lands.     The  number  of  the  people  is  countless,  and  their  buildings 

1  [Reprinted  from  the  literal  translation  published  by  David  McKay, 
Philadelphia,  with  the  pubhsher's  consent.] 

88 


Chap.  IV.]  CiESAR*S   COMMENTARIES  89 

exceedingly  numerous,  for  the  most  part  very  like  those  of  the 
Gauls :  the  number  of  cattle  is  great.  They  use  either  brass  or 
iron  rings,  determined  at  a  certain  weight,  as  their  money.  Tin  is 
produced  in  the  midland  regions ;  in  the  maritime,  iron ;  but  the 
quantity  of  it  is  small :  they  employ  brass,  which  is  imported. 
There,  as  in  Gaul,  is  timber  of  every  description,  except  beech  and 
fir.  They  do  not  regard  it  lawful  to  eat  the  hare,  and  the  cock, 
and  the  goose;  they,  however,  breed  them  for  amusement  and 
pleasure.  The  climate  is  more  temperate  than  in  Gaul,  the  colds 
"being  less  severe. 

Chap.  XIV.  —  The  most  civilized  of  all  these  nations  are  they 
who  inhabit  Kent,  which  is  entirely  a  maritime  district,  nor  do  they 
differ  much  from  the  Gallic  customs.  Most  of  the  inland  inhabit- 
ants do  not  sow  corn,  but  live  on  milk  and  flesh,  and  are  clad  with 
skins.  All  the  Britains,  indeed,  dye  themselves  with  woad,  which 
occasions  a  bluish  color,  and  thereby  have  a  more  terrible  appear- 
ance in  fight.  They  wear  their  hair  long,  and  have  every  part  of 
their  body  shaved  except  their  head  and  upper  lip.  Ten  and  even 
twelve  have  wives  common  to  them,  and  particularly  brothers 
among  brothers,  and  parents  among  their  children ;  but  if  there 
be  any  issue  by  these  wives,  they  are  reputed  to  be  the  children 
of  those  by  whom  respectively  each  was  first  espoused  when  a 
virgin. 

BOOK   VI 

The  Argument 

I.  Caesar,  apprehending  commotions  in  Gaul,  levies  additional  forces. 
—  II.-VI.  Defeats  the  Nervii,  Senones,  Carnutes,  and  Menapii.  —  VII., 
YIII.  Labienus  defeats  the  Treviri.  —  IX.  Caesar  again  crosses  the 
Rhine ;  the  Ubii  send  ambassadors  to  plead  the  defence  of  their  state.  — 
XI.-XX.  The  political  factions  of  the  Gallic  states.  The  Druids,  the 
second  order  or  knights,  the  third  order  or  commonalty,  and  the  my- 
thology of  the  Gauls.  —  XXI.-XXVII.  The  Germans  ;  their  customs  ; 
account  of  some  remarkable  animals  found  in  the  Hercinian  forest.  — 
XXIX.-XXXI.  Caesar  returns  to  Gaul ;  Ambiorix  is  worsted ;  death 
of  Cativolcus.  —  XXXII.-XXXIV.  The  territories  of  the  Eburones 
are  plundered.  —  XXXV.-XLII.  The  Sigambri  attack  the  Roman 
earnp ;  some  extraordinary  incidents  connected  therewith.  Caesar 
arrives  and  restores  confidence.  —  XLIII.,  XLIV.  Caesar  holds  an  in- 
vestigation respecting  the  conspiracy  of  the  Senones  ;  Acco  suffers  capital 
punishment ;  the  appointment  of  winter  quarters ;  Caesar  departs  for 
Italy. 

Chap.  XI.  —  Since  we  have  come  to  this  place,  it  does  not  ap- 
pear to  be  foreign  to  our  subject  to  lay  before  the  reader  an  ac- 
count of  the  manners  of  Gaul  and  Germany,  and  wherein  these 
nations  differ  from  each  other.     In  Gaul  there  are  factions  not 


90  GENERAL   LITERATURE  [Part  I. 

only  in  all  the  states,  and  in  all  the  cantons  and  their  divisions, 
but  almost  in  each  family,  and  of  these  factions  those  are  the 
leaders  who  are  considered  according  to  their  judgment  to  possess 
the  greatest  influence,  upon  whose  will  and  determination  the 
management  of  all  affairs  and  measures  depends.  And  that 
seems  to  have  been  instituted  in  ancient  times  with  this  view, 
that  no  one  of  the  common  people  should  be  in  want  of  support 
against  one  more  powerful ;  for  none  [of  those  leaders]  suffers  his 
party  to  be  oppressed  and  defrauded,  and  if  he  do  otherwise,  he 
has  no  influence  among  his  party.  This  same  policy  exists  through- 
out the  w^hole  of  Gaul;  for  all  the  states  are  divided  into  two 
factions. 

Chap.  XIII.  —  Throughout  all  Gaul  there  are  two  orders  of 
those  men  who  are  of  any  rank  and  dignity  :  for  the  commonalty  is 
held  almost  in  the  condition  of  slaves,  and  dares  to  undertake 
nothing  of  itself  and  is  admitted  to  no  deliberation.  The  greater 
part,  when  they  are  pressed  either  by  debt,  or  the  large  amount  of 
their  tributes,  or  the  oppression  of  the  more  powerful,  give  them- 
selves up  in  vassalage  to  the  nobles,  who  possess  over  them  the 
same  rights  without  exception  as  masters  over  their  slaves.  But 
of  these  two  orders,  one  is  that  of  the  Druids,  the  other  that  of  the 
knights.  The  former  are  engaged  in  things  sacred,  conduct  the 
public  and  the  private  sacrifices,  and  interpret  all  matters  of 
religion.  To  these  a  large  number  of  the  young  men  resort  for  the 
purpose  of  instruction,  and  they  [the  Druids]  are  in  great  honor 
among  them.  For  they  determine  respecting  almost  all  contro- 
versies, public  and  private ;  and  if  any  crime  has  been  perpetrated, 
if  murder  has  been  committed,  if  there  be  any  dispute  about  an 
inheritance,  if  any  about  boundaries,  these  same  persons  decide  it ; 
they  decree  rewards  and  punishments,  if  any  one,  either  in  a  private 
or  public  capacity,  has  not  submitted  to  their  decision,  they  inters 
diet  him  from  the  sacrifices.  This  among  them  is  the  most  heavy 
punishment.  Those  who  have  been  thus  interdicted  are  esteemed 
in  the  number  of  the  impious  and  the  criminal :  all  shun  them, 
and  avoid  their  society  and  conversation,  lest  they  receive  some 
evil  from  their  contact ;  nor  is  justice  administered  to  them  when 
seeking  it,  nor  is  any  dignity  bestowed  on  them.  Over  all  these 
Druids  one  presides,  who  possesses  supreme  authority  among 
them.  Upon  his  death,  if  any  individual  among  the  rest  is  pre- 
eminent in  dignity,  he  succeeds ;  but,  if  there  are  many  equal,  the 
election  is  made  by  the  suffrages  of  the  Druids ;  sometimes  they 
even  contend  for  the  presidency  with  arms.     These  assemble  at  a 


Chap.  IV.]  C^ESAR's   COMMENTARIES  91 

fixed  period  of  the  year  in  a  consecrated  place  in  the  territories  of 
the  Carnutes,  which  is  reckoned  the  central  region  of  the  whole  of 
Gaul.  Hither  all,  who  have  disputes,  assemble  from  every  part, 
and  submit  to  their  decrees  and  determinations.  This  institution 
is  supposed  to  have  been  devised  in  Britain,  and  to  have  been 
brought  over  from  it  into  Gaul ;  and  now  those  who  desire  to  gain 
a  more  accurate  knowledge  of  that  system  generally  proceed 
thither  for  the  purpose  of  studying  it. 

Chap.  XIV.  —  The  Druids  do  not  go  to  war,  nor  pay  tribute 
together  with  the  rest;  they  have  an  exemption  from  military 
service  and  a  dispensation  in  all  matters.  Induced  by  such  great 
advantages,  many  embrace  this  profession  of  their  own  accord, 
and  [many]  are  sent  to  it  by  their  parents  and  relations.  They  are 
said  there  to  learn  by  heart  a  great  number  of  verses  ;  accordingly 
some  remain  in  the  course  of  training  twenty  years.  Nor  do 
they  regard  it  lawful  to  commit  these  to  writing,  though  in  almost 
all  other  matters,  in  their  public  and  private  transactions,  they 
use  Greek  characters.  That  practice  they  seem  to  me  to  have 
adopted  for  two  reasons;  because  they  neither  desire  their  doc- 
trines to  be  divulged  among  the  mass  of  the  people,  nor  those  who 
learn,  to  devote  themselves  the  less  to  the  efforts  of  memory,  rely- 
ing on  writing ;  since  it  generally  occurs  to  most  men,  that,  in  their 
dependence  on  writing,  they  relax  their  diligence  in  learning 
thoroughly,  and  their  employment  of  the  memory.  They  wish  to 
inculcate  this  as  one  of  their  leading  tenets,  that  souls  do  not 
become  extinct,  but  pass  after  death  from  one  body  to  another,  and 
then  think  that  men  by  this  tenet  are  in  a  great  degree  excited  to 
valor,  the  fear  of  death  being  disregarded.  They  likewise  discuss 
and  impart  to  the  youth  many  things  respecting  the  stars  and  their 
motion,  respecting  the  extent  of  the  world  and  of  our  earth, 
respecting  the  nature  of  things,  respecting  the  power  and  the 
majesty  of  the  immortal  gods. 

Chap.  XV.  —  The  other  order  is  that  of  the  knights.  These, 
when  there  is  occasion  and  any  war  occurs  (which  before  Caesar's 
arrival  was  for  the  most  part  wont  to  happen  every  year,  as  either 
they  on  their  part  were  inflicting  injuries  or  repelling  those  which 
others  inflicted  on  them),  are  all  engaged  in  war.  And  those  of 
them  most  distinguished  by  birth  and  resources,  have  the  greatest 
number  of  vassals  and  dependents  about  them.  They  acknowl- 
edge this  sort  of  influence  and  power  only. 

Chap.  XVI.  —  The  nation  of  all  the  Gauls  is  extremely  devoted 
to  superstitious  rites ;  and  on  that  account  they  who  are  troubled 


92  GENERAL   LITERATURE  [Part  I. 

with  unusually  severe  diseases  and  they  who  are  engaged  in  battles 
and  dangers,  either  sacrifice  men  as  victims,  or  vow  that  they  will 
sacrifice  them,  and  employ  the  Druids  as  the  performers  of  those 
sacrifices;  because  they  think  that  unless  the  life  of  a  man  be 
offered  for  the  life  of  a  man,  the  mind  of  the  immortal  gods  cannot 
be  rendered  propitious,  and  they  have  sacrifices  of  that  kind 
ordained  for  national  purposes.  Others  have  figures  of  vast  size, 
the  limbs  of  which  formed  of  osiers  they  fill  with  living  men,  which 
being  set  on  fire,  the  men  perish  enveloped  in  the  flames.  They 
consider  that  the  oblation  of  such  as  have  been  taken  in  theft,  or  in 
robbery,  of  any  other  offence,  is  more  acceptable  to  the  immortal 
gods ;  but  when  a  supply  of  that  class  is  wanting,  they  have  re- 
course to  the  oblation  of  even  the  innocent. 

Chap.  XIX.  —  Whatever  sums  of  money  the  husbands  have 
received  in  the  name  of  dowry  from  their  wives,  making  an  esti- 
mate of  it,  they  add  the  same  amount  out  of  their  own  estates. 
An  account  is  kept  of  all  this  money  conjointly,  and  the  profits  are 
laid  by:  whichever  of  them  shall  have  survived  [the  other],  to 
that  one  the  portion  of  both  reverts  together  with  the  profits  of  the 
previous  time.  Husbands  have  power  of  life  and  death  over 
their  wives  as  well  as  over  their  children  :  and  when  the  father  of  a 
family,  born  in  a  more  than  commonly  distinguished  rank,  has 
died,  his  relations  assemble,  and,  if  the  circumstances  of  his  death 
are  suspicious,  hold  an  investigation  upon  the  wives  in  the  manner 
adopted  towards  slaves ;  and,  if  proof  be  obtained,  put  them  to 
severe  torture,  and  kill  them.  Their  funerals,  considering  the 
state  of  civilization  among  the  Gauls,  are  magnificent  and  costly ; 
and  they  cast  into  the  fire  all  things,  including  living  creatures, 
which  they  suppose  to  have  been  dear  to  them  when  alive ;  and, 
a  little  before  this  period,  slaves  and  dependents,  who  were  ascer- 
tained to  have  been  beloved  by  them,  were,  after  the  regular 
funeral  rites  were  completed,  burnt  together  with  them. 

Chap.  XX.  —  Those  states  which  are  considered  to  conduct  their 
commonwealth  more  judiciously,  have  it  ordained  by  their  laws, 
that,  if  any  person  shall  have  heard  by  rumor  and  report  from  his 
neighbors  anything  concerning  the  commonwealth,  he  shall  convey 
it  to  the  magistrate  and  not  impart  it  to  any  other ;  because  it  has 
been  discovered  that  inconsiderate  and  inexperienced  men  were 
often  alarmed  by  false  reports  and  driven  to  some  rash  act,  or  else 
took  hasty  measures  in  affairs  of  the  highest  importance.  The 
magistrates  conceal  those  things  which  require  to  be  kept  unknown  ; 
and  they  disclose  to  the  people  whatever  they  determine  to  be 


Chap.  IV.]  CAESAR  S   COMMENTARIES  93 

expedient.  It  is  not  lawful  to  speak  of  the  commonwealth,  except 
in  council. 

Chap.  XXI.  —  The  Germans  differ  much  from  these  usages, 
for  they  have  neither  Druids  to  preside  over  sacred  offices,  nor  do 
they  pay  great  regard  to  sacrifices.  They  rank  in  the  number  of 
the  gods  those  alone  whom  they  behold,  and  by  whose  instrumen- 
tality they  are  obviously  benefited,  namely,  the  sun,  fire,  and  the 
moon ;  they  have  not  heard  of  the  other  deities  even  by  report. 
Their  whole  life  is  occupied  in  hunting  and  in  the  pursuits  of  the 
military  art;  from  childhood  they  devote  themselves  to  fatigue 
and  hardships.   ... 

Chap.  XXII.  —  They  do  not  pay  much  attention  to  agriculture, 
and  a  large  portion  of  their  food  consists  in  milk,  cheese,  and  flesh ; 
nor  has  any  one  a  fixed  quantity  of  land  or  his  own  individual 
limits ;  but  the  magistrates  and  the  leading  men  each  year  appor- 
tion to  the  tribes  and  families,  who  have  united  together,  as  much 
land  as,  and  in  the  place  in  which,  they  think  proper,  and  the  year 
after  compel  them  to  remove  elsewhere.  For  this  enactment  they 
advance  many  reasons  —  lest  seduced  by  long-continued  custom, 
they  may  exchange  their  ardor  in  the  waging  of  war  for  agriculture ; 
lest  they  may  be  anxious  to  acquire  extensive  estates,  and  the  more 
powerful  drive  the  weaker  from  their  possessions ;  lest  they  con- 
struct their  houses  with  too  great  a  desire  to  avoid  cold  and  heat ; 
lest  the  desire  of  wealth  spring  up,  from  which  cause  divisions  and 
discords  arise ;  and  that  they  may  keep  the  common  people  in  a 
contented  state  of  mind,  when  each  sees  his  own  means  placed  on 
an  equality  with  [those  of]  the  most  powerful. 

Chap.  XXIII.  —  It  is  the  greatest  glory  to  the  several  states  to 
have  as  wide  deserts  as  possible  around  them,  their  frontiers  having 
been  laid  waste.  They  consider  this  the  real  evidence  of  their 
prowess,  that  their  neighbors  shall  be  driven  out  of  their  lands  and 
abandon  them,  and  that  no  one  dare  settle  near  them  ;  at  the  same 
time  they  think  that  they  shall  be  on  that  account  the  more  secure, 
because  they  have  removed  the  apprehension  of  a  sudden  incur- 
sion. When  a  state  either  repels  war  waged  against  it,  or  wages  it 
against  another,  magistrates  are  chosen  to  preside  over  that  war 
with  such  authority,  that  they  have  power  of  life  and  death.  In 
peace  there  is  no  common  magistrate,  but  the  chiefs  of  provinces 
and  cantons  administer  justice  and  determine  controversies  among 
their  own  people.  Robberies  which  are  committed  beyond  the 
boundaries  of  each  state  bear  no  infamy,  and  they  avow  that  these 
are  committed  for  the  purpose  of  disciplining  their  youth  and  of  pre- 


94  GENERAL   LITERATURE  [Part  I. 

venting  sloth.  And  when  any  of  their  chiefs  has  said  in  an  assem- 
bly "  that  he  will  be  their  leader,  let  those  who  are  willing  to  follow, 
give  in  their  names";  they  who  approve  of  both  the  enterprise 
and  the  man  arise  and  promise  their  assistance  and  are  applauded 
by  the  people ;  such  of  them  as  have  not  followed  him  are  ac- 
counted in  the  number  of  deserters  and  traitors,  and  confidence  in 
all  matters  is  afterwards  refused  them.  To  injure  guests  they 
regard  as  impious ;  they  defend  from  wrong  those  who  have  come 
to  them  for  any  purpose  whatever,  and  esteem  them  inviolable; 
to  them  the  houses  of  all  are  open  and  maintenance  is  freely  sup- 
plied. 

Chap.  XXIV.  —  And  there  was  formerly  a  time  when  the  Gauls 
excelled  the  Germans  in  prowess,  and  waged  war  on  them  offen- 
sively, and,  on  account  of  the  great  number  of  their  people  and  the 
insufficiency  of  their  land,  sent  colonies  over  the  Rhine.  Accord- 
ingly, the  Volcae  Tectosages  seized  on  those  parts  of  Germany 
which  are  the  most  fruitful  [and  lie]  around  the  Hercynian  forest 
(which,  I  perceive,  was  known  by  report  to  Eratosthenes  and  some 
other  Greeks,  and  which  they  call  Orcynia)  and  settled  there. 
Which  nation  to  this  time  retains  its  position  in  those  settlements, 
and  has  a  very  high  character  for  justice  and  military  merit :  now 
also  they  continue  in  the  same  scarcity,  indigence,  hardihood,  as 
the  Germans,  and  use  the  same  food  and  dress ;  but  their  proxim- 
ity to  the  Province  and  knowledge  of  commodities  from  countries 
beyond  the  sea  supplies  to  the  Gauls  many  things  tending  to 
luxury  as  well  as  civilization.  Accustomed  by  degrees  to  be  over- 
matched and  worsted  in  many  engagements,  they  do  not  even  com- 
pare themselves  to  the  Germans  in  prowess. 


Chapter  V 

A  TREATISE  ON   THE   SITUATION,   MANNERS,   AND 
PEOPLE  OF   GERMANY! 

I.  The  whole  vast  country  of  Germany  is  separated  from  Gaul, 
from  Rhsetia,  and  Pannonia,  by  the  Rhine  and  the  Danube ;  from 
Dacia  and  Sarmatia,  by  a  chain  of  mountains,  and,  where  the 
mountains  subside,  mutual  dread  forms  a  sufficient  barrier.  The 
rest  is  bounded  by  the  ocean,  embracing  in  its  depth  of  water 
several  spacious  bays,  and  islands  of  prodigious  extent,  whose  kings 
and  people  are  now,  in  some  measure,  known  to  us,  the  progress  of 
our  arms  having  made  recent  discoveries.   .   .   . 

II.  The  Germans,  there  is  reason  to  think,  are  an  indigenous 
race,  the  original  natives  of  the  country,  without  any  intermixture 
of  adventitious  settlers  from  other  nations.  In  the  early  ages  of 
the  world,  the  adventurers  who  issued  forth  in  quest  of  new 
habitations,  did  not  traverse  extensive  tracts  of  land;  the  first 
migrations  were  made  by  sea.  Even  at  this  day  the  Northern 
Ocean,  vast  and  boundless,  and,  as  I  may  say,  always  at  enmity 
with  mariners,  is  seldom  navigated  by  ships  from  our  quarter  of 
the  world.  Putting  the  dangers  of  a  turbulent  and  unknown  sea 
out  of  the  case,  who  would  leave  the  softer  climes  of  Asia,  Africa, 
or  Italy,  to  fix  his  abode  in  Germany  ?  where  nature  offers  nothing 
but  scenes  of  deformity:  where  the  inclemency  of  the  seasons 
never  relents;  where  the  land  presents  a  dreary  region,  without 
form  or  culture,  and,  if  we  except  the  affection  of  a  native  for  his 
mother-country,  without  an  allurement  to  make  life  supportable. 
In  all  songs  and  ballads,  the  only  memorials  of  antiquity  amongst 
them,  the  god  Tuisto,  who  was  born  of  the  Earth,  and  Mannus,  his 
son,  are  celebrated  as  the  founders  of  the  German  race.  Mannus, 
it  is  said,  had  three  sons,  from  whom  the  Ingsevones,  who  bordered 
on  the  sea-coast ;  the  Hermiones,  who  inhabit  the  midland  country ; 
and  the  Istsevones,  who   occupy  the  remaining  tract,  have   all 

^  [Translated  by  Arthur  Murphy,  Mr.  Murphy  was  born  Dec.  27th, 
1727,  and  died  in  1805.  The  time  when  this  treatise  by  Tacitus  on  Ger- 
man manners  was  written,  is  fixed  by  Lipsius  in  the  fourth  consulship 
of  Nerva,  and  the  second  of  Trajan,  a.d.  98.] 

95 


96  GENERAL  LITERATURE  [Part  I. 

respectively  derived  their  names.  Some  indeed,  taking  advantage 
of  the  obscurity  that  hangs  over  remote  and  fabulous  ages,  ascribe 
to  the  god  Tuisto  a  more  numerous  issue,  and  thence  trace  the 
names  of  various  tribes,  such  as  the  Marsians,  the  Gambrivians,  the 
Suevians,  and  the  Vandals.  The  ancient  date  and  authenticity  of 
those  names  are,  as  they  contend,  clearly  ascertained.  The  word 
Germany  is  held  to  be  of  modern  addition.  In  support  of  this 
hypothesis,  they  tell  us  that  the  people  who  first  passed  the  Rhine, 
and  took  possession  of  a  canton  in  Gaul,  though  known  at  present 
by  the  name  of  Tungrians,  were,  in  that  expedition,  called  Germans, 
and  thence  the  title  assumed  by  a  band  of  emigrants,  in  order  to 
spread  a  general  terror  in  their  progress,  extended  itself  by  degrees, 
and  became,  in  time,  the  appellation  of  a  whole  people.  They  have 
a  current  tradition  that  Hercules  visited  those  parts.  When 
rushing  to  battle,  they  sing,  in  preference  to  all  other  heroes, 
the  praises  of  that  ancient  worthy. 

III.  The  Germans  abound  with  rude  strains  of  verse,  the 
reciters  of  which,  in  the  language  of  the  country,  are  called  Bards. 
With  this  barbarous  poetry  they  inflame  their  minds  with  ardour 
in  the  day  of  action,  and  prognosticate  the  event  from  the  impres- 
sion which  it  happens  to  make  on  the  minds  of  the  soldiers,  who 
grow  terrible  to  the  enemy,  or  despair  of  success,  as  the  war-song 
produces  an  animated  or  a  feeble  sound.  Nor  can  their  manner  of 
chanting  this  savage  prelude  be  called  the  tone  of  human  organs : 
it  is  rather  a  furious  uproar;  a  wild  chorus  of  military  virtue. 
The  vociferation  used  upon  these  occasions  is  uncouth  and  harsh, 
at  intervals  interrupted  by  the  application  of  their  bucklers  to  their 
mouths,  and  by  the  repercussion  bursting  out  with  redoubled 
force.   .   .   . 

IV.  I  have  already  acceded  to  the  opinion  of  those,  who  think 
that  the  Germans  have  hitherto  subsisted  without  intermarrying 
with  other  nations,  a  pure,  unmixed,  and  independent  race,  unlike 
any  other  people,  all  bearing  the  marks  of  a  distinct  national 
character.  Hence,  what  is  very  remarkable  in  such  prodigious 
numbers,  a  family  likeness  throughout  the  nation ;  the  same  form 
and  feature,  stern  blue  eyes,  ruddy  hair,  their  bodies  large  and 
robust,  but  powerful  only  in  sudden  efforts.  They  are  impatient 
of  toil  and  labour ;  thirst  and  heat  overcome  them ;  but,  from  the 
nature  of  their  soil  and  climate,  they  are  proof  against  cold  and 
hunger. 

V.  The  face  of  the  country,  though  in  some  parts  varied, 
presents  a  cheerless  scene,  covered  with  the  gloom  of  forests, 


lAP.  v.]  TACITUS'    GERMANIA  97 


f 

Kor  deformed  with  wide-extended  marshes;  towards  the  bound- 
Baries  of  Gaul,  moist  and  swampy;  on  the  side  of  Noricum  and 
Pannonia,  more  exposed  to  the  fury  of  the  winds.  Vegetation 
thrives  with  sufficient  vigour.  The  soil  produces  grain,  but  is 
unkind  to  fruit-trees ;  well  stocked  with  cattle,  but  of  an  under- 
size,  and  deprived  by  nature  of  the  usual  growth  and  ornament  of 
the  head.  The  pride  of  a  German  consists  in  the  number  of  his 
flocks  and  herds :  they  are  his  only  riches,  and  in  these  he  places 
his  chief  delight.  Gold  and  silver  are  withheld  from  them ;  is  it 
by  the  favour  or  the  wrath  of  Heaven  ?  I  do  not,  however,  mean  to 
assert  that  in  Germany  there  are  no  veins  of  precious  ore ;  for  who 
has  been  a  miner  in  those  regions  ?  Certain  it  is,  they  do  not  enjoy 
the  possession  and  use  of  those  metals  with  our  sensibility.  There 
are,  indeed,  silver  vessels  to  be  seen  amongst  them,  but  they  were 
presents  to  their  chiefs  or  ambassadors ;  the  Germans  regard  them 
in  no  better  light  than  common  earthenware.  It  is,  however, 
observable,  that  near  the  borders  of  the  empire,  the  inhabitants 
set  a  value  upon  gold  and  silver,  finding  them  subservient  to  the 
purposes  of  commerce.  The  Roman  coin  is  known  in  those  parts, 
and  some  of  our  specie  is  not  only  current,  but  in  request.  In 
places  more  remote,  the  simplicity  of  ancient  manners  still  prevails  : 
commutation  of  property  is  their  only  traffic.  Where  money 
passes  in  the  way  of  barter,  our  old  coin  is  the  most  acceptable, 
particularly  that  which  is  indented  at  the  edge,  or  stamped  with 
the  impression  of  a  chariot  and  two  horses,  called  the  serrati  and 
BiGATi.  Silver  is  preferred  to  gold,  not  from  caprice  or  fancy, 
but  because  the  inferior  metal  is  of  more  expeditious  use  in  the 
purchase  of  low-priced  commodities. 

VI.  Iron  does  not  abound  in  Germany,  if  we  may  judge  from 
the  weapons  in  general  use.  Swords  and  large  lances  are  seldom 
seen.  The  soldier  grasps  his  javelin,  or,  as  it  is  called  in  their 
language,  his  fram  ;  an  instrument  tipped  with  a  short  and  narrow 
piece  of  iron,  sharply  pointed,  and  so  commodious,  that,  as  occasion 
requires,  he  can  manage  it  in  close  engagement,  or  in  distant  com- 
bat. With  this,  and  a  shield,  the  cavalry  is  completely  armed. 
The  infantry  have  an  addition  of  missive  weapons.  Each  man 
carries  a  considerable  number,  and,  being  naked,  or,  at  least,  not 
encumbered  by  his  light  mantle,  he  throws  his  weapon  to  a  distance 
almost  incredible.  A  German  has  no  attention  to  the  ornament  of 
his  person  :  his  shield  is  the  object  of  his  care,  and  this  he  decorates 
with  the  liveliest  colours.  Breastplates  are  uncommon.  In  a 
whole  army  you  will  not  see  more  than  one  or  two  helmets.     Their 


98  GENERAL   LITERATURE  [Part  I. 

horses  have  neither  swiftness  nor  elegance  of  shape,  nor  are  they 
trained  to  the  various  evolutions  of  the  Roman  cavalry.  To  ad- 
vance in  a  direct  line,  or  wheel  suddenly  to  the  right,  is  the  whole  of 
their  skill,  and  this  they  perform  in  so  compact  a  body,  that  not 
one  is  thrown  out  of  his  rank.  According  to  the  best  estimate,  the 
infantry  form  the  national  strength,  and,  for  that  reason,  always 
fight  intermixed  with  the  cavalry.  The  flower  of  their  youth,  able 
by  their  vigour  and  activity  to  keep  pace  with  the  movements  of 
the  horse,  are  selected  for  this  purpose,  and  placed  in  the  front  of 
the  fines.  The  number  of  these  is  fixed  and  certain  :  each  canton 
sends  a  hundred,  from  that  circumstance  called  hundreders  by 
the  army.  The  name  was  at  first  numerical  only  :  it  is  now  a  title 
of  honour.  Their  order  of  battle  presents  the  form  of  a  wedge. 
To  give  ground  in  the  heat  of  action,  provided  you  return  to  the 
charge,  is  military  skill,  not  fear,  or  cowardice.  In  the  most  fierce 
and  obstinate  engagement,  even  when  the  fortune  of  the  day  is 
doubtful,  they  make  it  a  point  to  carry  off  their  slain.  To  abandon 
their  shield  is  a  flagitious  crime.  The  person  guilty  of  it  is  inter- 
dicted from  religious  rites,  and  excluded  from  the  assembly  of  the 
"state.  Many,  who  survived  their  honour  on  the  day  of  battle, 
have  closed  a  life  of  ignominy  by  a  halter. 

VII.  The  kings  in  Germany  owe  their  election  to  the  nobility 
of  their  birth;  the  generals  are  chosen  for  their  valour.  The 
power  of  the  former  is  not  arbitrary  or  unlimited ;  the  latter  com- 
mand more  by  warlike  example  than  by  their  authority.  To  be  of 
a  prompt  and  daring  spirit  in  battle,  and  to  attack  in  the  front  of 
the  lines,  is  the  popular  character  of  the  chieftain :  when  admired 
for  his  bravery,  he  is  sure  to  be  obeyed.  Jurisdiction  is  vested  in 
the  priests.  It  is  theirs  to  sit  in  judgment  upon  all  offences.  By 
them,  dehnquents  are  put  in  irons,  and  chastised  with  stripes. 
The  power  of  punishing  is  in  no  other  hands.  When  exerted  by 
the  priests,  it  has  neither  the  air  of  vindictive  justice,  nor  of 
military  execution ;  it  is  rather  a  religious  sentence,  inflicted  with 
the  sanction  of  the  god,  who,  according  to  the  German  creed, 
attends  their  armies  on  the  day  of  battle.  To  impress  on  their 
minds  the  idea  of  a  tutelar  deity,  they  carry  with  them  to  the 
field  certain  images  and  banners,  taken  from  their  usual  depository, 
the  religious  groves.  A  circumstance  which  greatly  tends  to  in- 
flame them  with  heroic  ardour,  is  the  manner  in  which  their  bat- 
talions are  formed.  They  are  neither  mustered  nor  embodied  by 
chance.  They  fight  in  clans,  united  by  consanguinity,  a  family 
of  warriors.     Their  tenderest  pledges  are  near  them  in  the  field. 


Chap.  V.J  TACITUs'   GERMANIA  99 

In  the  heat  of  the  engagement,  the  soldier  hears  the  shrieks  of  his 
wife,  and  the  cries  of  his  children.  These  are  the  darling  witnesses 
of  his  conduct,  the  applauders  of  his  valour,  at  once  beloved  and 
valued.  The  wounded  seek  their  mothers  and  their  wives  :  undis- 
mayed at  the  sight,  the  women  count  each  honourable  scar,  and 
suck  the  gushing  blood.  They  are  even  hardy  enough  to  mix  with 
the  combatants,  administering  refreshment,  and  exhortin-g  them 
to  deeds  of  valour. 

VIII.  From  tradition,  they  have  a  variety  of  instances  of 
armies  put  to  the  rout,  and  by  the  interposition  of  their  wives 
and  daughters  again  incited  to  renew  the  charge.  Their  women 
saw  the  ranks  give  way,  and  rushing  forward  in  the  instant,  by 
the  vehemence  of  their  cries  and  supplications,  by  opposing  their 
breasts  to  danger,  and  by  representing  the  horrors  of  slavery, 
restored  the  order  of  the  battle.  To  a  German  mind  the  idea  of  a 
woman  led  into  captivity  is  insupportable.  In  consequence  of  this 
prevaihng  sentiment,  the  states  which  deliver  as  hostages  the 
daughters  of  illustrious  families,  are  bound  by  the  most  effectual 
obligation.  There  is,  in  their  opinion,  something  sacred  in  the 
female  sex,  and  even  the  power  of  foreseeing  future  events.  Their 
advice  is,  therefore,  always  heard ;  they  are  frequently  consulted, 
and  their  responses  are  deemed  oracular.  We  have  seen,  in  the 
reign  of  Vespasian,  the  famous  Veleda  revered  as  a  divinity  by  her 
countrymen.  Before  her  time,  Aurinia  and  others  were  held  in 
equal  veneration;  but  a  veneration  founded  on  sentiment  and 
superstition,  free  from  that  servile  adulation  which  pretends  to 
people  heaven  with  human  deities. 

IX.  Mercury  is  the  god  chiefly  adored  in  Germany.  On 
stated  days  they  think  it  lawful  to  offer  to  him  human  victims. 
They  sacrifice  to  Hercules  and  Mars  such  animals  as  are  usually 
slain  in  honour  of  the  gods.  In  some  parts  of  the  country  of  the 
Suevians,  the  worship  of  Isis  is  established.  To  trace  the  intro- 
duction of  ceremonies,  which  had  their  growth  in  another  part  of 
the  world,  were  an  investigation  for  which  I  have  no  materials : 
suffice  it  to  say,  that  the  figure  of  a  ship  (the  symbolic  representa- 
tion of  the  goddess)  clearly  shows  that  the  religion  was  imported 
into  the  country.  Their  deities  are  not  immured  in  temples,  nor 
represented  under  any  kind  of  resemblance  to  the  human  form. 
To  do  either,  were,  in  their  opinion,  to  derogate  from  the  majesty  of 
superior  beings.  Woods  and  groves  are  the  sacred  depositories ; 
and  the  spot  being  consecrated  to  those  pious  uses,  they  give  to  that 
sacred  recess  the  name  of  the  divinity  that  fills  the  place,  which  is 


100  GENERAL   LITERATURE  [Part  I 

never  profaned  by  the  steps  of  man.  The  gloom  fills  every  mind 
with  awe ;  revered  at  a  distance,  and  never  seen  but  with  the  eye 
of  contemplation. 

X.  Their  attention  to  auguries,  and  the  practice  of  divining 
by  lots,  is  conducted  with  a  degree  of  superstition  not  exceeded 
by  any  other  nation.  Their  mode  of  proceeding  by  lots  is  wonder- 
fully simple.  The  branch  of  a  fruit-tree  is  cut  into  small  pieces, 
which,  being  all  distinctly  marked,  are  thrown  at  random  on  a  white 
garment.  If  a  question  of  public  interest  be  depending,  the  priest 
of  the  canton  performs  the  ceremony ;  if  it  be  nothing  more  than  a 
private  concern,  the  master  of  the  family  officiates.  With  fervent 
prayers  offered  up  to  the  gods,  his  eyes  devoutly  raised  to  heaven, 
he  holds  up  three  times  each  segment  of  the  twig,  and  as  the  marks 
rise  in  succession,  interprets  the  decrees  of  fate.  If  appearances 
prove  unfavourable,  there  ends  all  consultation  for  that  day :  if, 
on  the  other  hand,  the  chances  are  propitious,  they  require,  for 
greater  certainty,  the  sanction  of  auspices.  The  well-known 
superstition,  which  in  other  countries  consults  the  flight  and  notes 
of  birds,  is  also  established  in  Germany ;  but  to  receive  intimation 
of  future  events  from  horses  is  the  peculiar  credulity  of  the  country. 
For  this  purpose  a  number  of  milk-white  steeds,  unprofaned  by 
mortal  labour,  are  constantly  maintained  at  the  public  expense, 
and  placed  to  pasture  in  the  religious  groves.  When  occasion 
requires,  they  are  harnessed  to  a  sacred  chariot,  and  the  priest, 
accompanied  by  the  king,  or  chief  of  the  state,  attends  to  watch 
the  motions  and  the  neighing  of  the  horses.  No  other  mode  of 
augury  is  received  with  such  implicit  faith  by  the  people,  the  nobil- 
ity, and  the  priesthood.  The  horses,  upon  these  solemn  occasions, 
are  supposed  to  be  the  organs  of  the  gods,  and  the  priests  their 
favoured  interpreters.  They  have  still  another  way  of  prying  into 
futurity,  to  which  they  have  recourse,  when  anxious  to  know  the 
issue  of  an  important  war.  They  seize,  by  any  means  in  their 
power,  a  captive  from  the  adverse  nation,  and  commit  him  in 
single  combat  with  a  champion  selected  from  their  own  army. 
Each  is  provided  with  weapons  after  the  manner  of  his  country,  and 
the  victory,  wherever  it  falls,  is  deemed  a  sure  prognostic  of  the 
event. 

XL  In  matters  of  inferior  moment  the  chiefs  decide ;  important 
questions  are  reserved  for  the  whole  community.  Yet  even  in 
those  cases  where  all  have  a  voice,  the  business  is  discussed  and 
prepared  by  the  chiefs.  The  general  assembly,  if  no  sudden  alarm 
calls  the  people  together,  has  its  fixed  and  stated  periods,  either 


Chap.  V.]  TACITUS'    GERMANIA  iOl 

at  the  new  or  full  moon.  This  is  thought  the  season  most  propi- 
tious to  public  affairs.  Their  account  of  time  differs  from  that  of 
the  Romans:  instead  of  days  they  reckon  the  number  of  nights. 
Their  pubHc  ordinances  are  so  dated;  and  their  proclamations 
run  in  the  same  style.  The  night,  according  to  them,  leads  the  day. 
Their  passion  for  liberty  is  attended  with  this  ill  consequence : 
when  a  pubHc  meeting  is  announced,  they  never  assemble  at  the 
stated  time.  Regularity  would  look  like  obedience :  to  mark 
their  independent  spirit,  they  do  not  convene  at  once,  but  two  or 
three  days  are  lost  in  delay.  When  they  think  themselves  suffi- 
ciently numerous,  the  business  begins.  Each  man  takes  his  seat, 
completely  armed.  Silence  is  proclaimed  by  the  priests,  who  still 
retain  their  coercive  authority.  The  king,  or  chief  of  the  com- 
munity, opens  the  debate  :  the  rest  are  heard  in  their  turn,  accord- 
ing to  age,  nobility  of  descent,  renown  in  war,  or  fame  for  eloquence. 
No  man  dictates  to  the  assembly :  he  may  persuade,  but  cannot 
command.  When  anything  is  advanced  not  agreeable  to  the 
people,  they  reject  it  with  a  general  murmur.  If  the  proposition 
pleases,  they  brandish  their  javelins.  This  is  their  highest  and 
most  honourable  mark  of  applause :  they  assent  in  a  military 
manner,  and  praise  by  the  sound  of  their  arms. 

XII.  In  this  council  of  the  state,  accusations  are  exhibited, 
and  capital  offences  prosecuted.  Pains  and  penalties  are  pro- 
portioned to  the  nature  of  the  crime.  For  treason  and  desertion, 
the  sentence  is  to  be  hanged  on  a  tree :  the  coward,  and  such  as 
are  guilty  of  unnatural  practices,  are  plunged  under  a  hurdle  into 
bogs  and  fens.  In  these  different  punishments,  the  point  and 
spirit  of  the  law  is,  that  crimes  which  affect  the  state  may  be  ex- 
posed to  public  notoriety  :  infamous  vice  cannot  be  too  soon  buried 
in  oblivion.  He  who  is  convicted  of  transgressions  of  an  inferior 
nature,  pays  a  mulct  of  horses,  or  of  cattle.  Part  of  that  fine  goes 
to  the  king  or  the  community,  and  part  to  the  person  injured  or  to 
his  family.  It  is  in  these  assemblies  that  princes  are  chosen  and 
chiefs  elected  to  act  as  magistrates  in  the  several  cantons  of  the 
state.  To  each  of  these  judicial  officers,  assistants  are  appointed 
from  the  body  of  the  people,  to  the  number  of  a  hundred,  who 
attend  to  give  their  advice,  and  strengthen  the  hands  of  justice. 

XIII .  A  German  transacts  no  business,  public  or  private, 
without  being  completely  armed.  The  right  of  carrying  arms 
is  assumed  by  no  person  whatever,  till  the  state  has  declared  him 
duly  qualified.  The  young  candidate  is  introduced  before  the 
assembly,  where  one  of  the  chiefs,  or  his  father,  or  some  near  rela- 


.!M}2 ,  GENERAL    LITERATURE  [Part  I. 

tion,  provides  him  with  a  shield  and  javelin.  This,  with  them,  is 
the  manly  gown  :  the  youth  from  that  moment  ranks  as  a  citizen ; 
till  then  he  was  considered  as  part  of  the  household ;  he  is  now  a 
member  of  the  commonwealth.  In  honour  of  illustrious  birth, 
and  to  mark  the  sense  men  entertain  of  the  father's  merit,  the  son, 
though  yet  of  tender  years,  is  called  to  the  dignity  of  a  prince  or 
chief.  Such  as  are  grown  up  to  manhood,  and  have  signalised 
themselves  by  a  spirit  of  enterprise,  have  always  a  number  of 
retainers  in  their  train.  Where  merit  is  conspicuous,  no  man 
blushes  to  be  seen  in  the  list  of  followers,  or  companions.  A 
clanship  is  formed  in  this  manner,  with  degrees  of  rank  and  sub- 
ordination.  The  chief  judges  the  pretensions  of  all,  and  assigns  to 
each  man  his  proper  station.  A  spirit  of  emulation  prevails  among 
his  whole  train,  all  struggling  to  be  the  first  in  favour,  while  the 
chief  places  all  his  glory  in  the  number  and  intrepidity  of  his 
companions.  In  that  consists  his  dignity;  to  be  surrounded 
by  a  band  of  young  men  is  the  source  of  his  power;  in  peace, 
his  brightest  ornament;  in  war,  his  strongest  bulwark.  Nor  is 
his  fame  confined  to  his  own  country ;  it  extends  to  foreign  nations, 
and  is  then  of  the  first  importance,  if  he  surpasses  his  rivals  in  the 
number  and  courage  of  his  followers.  He  receives  presents  from 
all  parts ;  ambassadors  are  sent  to  him ;  and  his  name  alone  is 
often  sufficient  to  decide  the  issue  of  a  war. 

XIV.  In  the  field  of  action,  it  is  disgraceful  to  the  prince  to 
be  surpassed  in  valour  by  his  companions  ;  and  not  to  vie  with  him 
in  martial  deeds,  is  equally  a  reproach  to  his  followers.  If  he  dies 
in  the  field,  he  who  survives  him  survives  to  live  in  infamy.  All 
are  bound  to  defend  their  leader,  to  succour  him  in  the  heat  of 
action,  and  to  make  even  their  own  actions  subservient  to  his 
renown.  This  is  the  bond  of  union,  the  most  sacred  obligation. 
The  chief  fights  for  victory ;  the  followers  for  their  chief.  If,  in  the 
course  of  a  long  peace,  the  people  relax  into  sloth  and  indolence, 
it  often  happens  that  the  young  nobles  seek  a  more  active  life  in 
the  service  of  other  states  engaged  in  war.  The  German  mind 
cannot  brook  repose.  The  field  of  danger  is  the  field  of  glory. 
Without  violence  and  rapine,  a  train  of  dependents  cannot  be 
maintained.  The  chief  must  show  his  liberality,  and  the  follower 
expects  it.  He  demands,  at  one  time  this  warlike  horse,  at  another, 
that  victorious  lance  imbued  with  the  blood  of  the  enemy.  The 
prince's  table,  however  inelegant,  must  always  be  plentiful :  it  is  the 
only  pay  of  his  followers.  War  and  depredation  are  the  ways  and 
means  of  the  chieftain.     To  cultivate  the  earth,  and  wait  the 


Chap.  V.]  TACITUS     GERMANIA  103 

regular  produce  of  the  seasons,  is  not  the  maxim  of  a  German : 
you  will  more  easily  persuade  him  to  attack  the  enemy,  and  pro- 
voke honourable  wounds  in  the  field  of  battle.  In  a  word,  to  earn 
by  the  sweat  of  your  brow,  what  you  might  gain  by  the  price  of 
your  blood,  is,  in  the  opinion  of  a  German,  a  sluggish  principle, 
unworthy  of  a  soldier. 

XV.  When  the  state  has  no  war  to  manage,  the  German 
mind  is  sunk  in  sloth.  The  chase  does  not  afford  sufficient  em- 
ployment. The  time  is  passed  in  sleep  and  gluttony.  The 
intrepid  warrior,  who  in  the  field  braved  every  danger,  becomes  in 
time  of  peace  a  listless  sluggard.  The  management  of  his  house 
and  lands  he  leaves  to  the  women,  to  the  old  men,  and  the  infirm 
part  of  his  family.  He  himself  lounges  in  stupid  repose,  by  a 
wonderful  diversity  of  nature  exhibiting  in  the  same  man  the  most 
inert  aversion  to  labour,  and  the  fiercest  principle  of  action.  It  is 
a  custom  established  in  the  several  states,  to  present  a  contribu- 
tion of  corn  and  cattle  to  their  chieftains.  Individuals  follow  the 
example,  and  this  bounty  proves  at  once  an  honour  to  the  prince, 
and  his  best  support.  Presents  are  also  sent  from  the  adjacent 
states,  as  well  by  private  persons,  as  in  the  name  of  the  community. 
Nothing  is  so  flattering  to  the  pride  of  the  chiefs  as  those  foreign 
favours,  consisting  of  the  best  horses,  magnificent  armour,  splendid 
harness,  and  beautiful  collars.  The  Romans  have  lately  taught 
them  to  receive  presents  of  money. 

XVI.  The  Germans,  it  is  well  known,  have  no  regular  cities; 
nor  do  they  allow  a  continuity  of  houses.  They  dwell  in  separate 
habitations,  dispersed  up  and  down,  as  a  grove,  a  meadow,  or  a 
fountain,  happens  to  invite.  They  have  villages,  but  not  in  our 
fashion,  with  a  series  of  connected  buildings.  Every  tenement 
stands  detached,  with  a  vacant  piece  of  ground  round  it,  either  to 
prevent  accidents  by  fire,  or  for  want  of  skill  in  the  art  of  building. 
They  neither  know  the  use  of  mortar  nor  of  tiles.  They  build  with 
rude  materials,  regardless  of  beauty,  order,  and  proportion. 
Particular  parts  are  covered  over  with  a  kind  of  earth  so  smooth 
and  shining,  that  the  natural  veins  have  some  resemblance  to  the 
lights  and  shades  of  painting.  Besides  these  habitations,  they 
have  a  number  of  subterraneous  caves,  dug  by  their  own  labour, 
and  carefully  covered  over  with  dung ;  in  winter  their  retreat  from 
cold,  and  the  repository  of  their  corn.  In  those  recesses  they  not 
only  find  a  shelter  from  the  rigour  of  the  season,  but  in  times  of 
foreign  invasion,  their  effects  are  safely  concealed.  The  enemy 
lays  waste  the  open  country,  but  the  hidden  treasure  escapes  the 


104  GENERAL  LITERATURE  [Part  I. 

general  ravage ;  safe  in  its  obscurity,  or  because  the  search  would 
be  attended  with  too  much  trouble. 

XVII.  The  clothing  in  use  is  a  loose  mantle,  made  fast  with  a 
clasp,  or  when  that  cannot  be  had,  with  a  thorn.  Naked  in  other 
respects,  they  loiter  away  whole  days  by  the  fireside.  The  rich 
wear  a  garment,  not,  indeed,  displayed  and  flowing,  like  the 
Parthians,  or  the  people  of  Sarmatia,  but  drawn  so  tight,  that  the 
form  of  the  limbs  is  palpably  expressed.  The  skins  of  wild  animals 
are  also  much  in  use.  Near  the  frontier,  on  the  borders  of  the 
Rhine,  the  inhabitants  wear  them,  but  with  an  air  of  neglect,  that 
shows  them  altogether  indifferent  about  the  choice.  The  people 
who  live  more  remote,  near  the  northern  seas,  and  have  not  ac- 
quired by  commerce  a  taste  for  new-fashioned  apparel,  are  more 
€urious  in  the  selection.  They  choose  particular  beasts,  and,  hav- 
ing stripped  off  the  furs,  clothe  themselves  with  the  spoil,  decorated 
with  parti-coloured  spots,  or  fragments  taken  from  the  skins  of 
fish  that  swim  the  ocean  as  yet  unexplored  by  the  Romans.  In 
point  of  dress  there  is  no  distinction  between  the  sexes,  except 
that  the  garment  of  the  women  is  frequently  made  of  linen,  adorned 
with  purple  stains,  but  without  sleeves,  leaving  the  arms  and  part  of 
the  bosom  uncovered. 

XVIII.  Marriage  is  considered  as  a  strict  and  sacred  institution. 
In  the  national  character  there  is  nothing  so  truly  commendable. 
To  be  contented  with  one  wife,  is  peculiar  to  the  Germans.  They 
differ,  in  this  respect,  from  all  other  savage  nations.  There  are, 
indeed,  a  few  instances  of  polygamy ;  not,  however,  the  effect  of 
loose  desire,  but  occasioned  by  the  ambition  of  various  families, 
who  court  the  alliance  of  the  chief  distinguished  by  the  nobility  of 
his  rank  and  character.  The  bride  brings  no  portion ;  she  receives 
a  dowry  from  her  husband.  In  the  presence  of  her  parents  and 
relations,  he  makes  a  tender  of  part  of  his  wealth;  if  accepted, 
the  match  is  approved.  In  the  choice  of  the  presents,  female 
vanity  is  not  consulted.  There  are  no  frivolous  trinkets  to  adorn 
the  future  bride.  The  whole  fortune  consists  of  oxen,  a  caparisoned 
horse,  a  shield,  a  spear,  and  a  sword.  She  in  return  delivers  a 
present  of  arms,  and,  by  this  exchange  of  gifts,  the  marriage  is  con- 
cluded. This  is  the  nuptial  ceremony,  this  the  bond  of  union,  these 
their  hymeneal  gods.  Lest  the  wife  should  think  her  sex  an  exemp- 
tion from  the  rigours  of  the  severest  virtue,  and  the  toils  of  war,  she 
is  informed  of  her  duty  by  the  marriage  ceremony,  and  thence 
she  learns,  that  she  is  received  by  her  husband  to  be  his  partner 
in  toil  and  danger,  to  dare  with  him  in  war,  and  suffer  with  him  in 


Chap.  V.]  TACITUS     GERMANIA  105 

jace.  The  oxen  yoked,  the  horse  accoutred,  and  the  arms  given 
^n  the  occasion,  inculcate  this  lesson ;  and  thus  she  is  prepared 
live,  and  thus  to  die.  These  are  the  terms  of  their  union : 
le  receives  her  armour  as  a  sacred  treasure,  to  be  preserved 
iviolate,  and  transmitted  with  honour  to  her  sons,  a  portion  for 
leir  wives,  and  from  them  descendible  to  her  grandchildren. 

XIX.  In  consequence  of  these  manners,  the  married  state  is  a 
life  of  affection  and  female  constancy.  The  virtue  of  the  woman  is 
guarded  from  seduction ;  no  public  spectacles  to  seduce  her ;  no 
banquets  to  inflame  her  passions ;  no  baits  of  pleasure  to  disarm 
her  virtue.  The  art  of  intriguing  by  clandestine  letters  is  unknown 
to  both  sexes.  Populous  as  the  country  is,  adultery  is  rarely 
heard  of :  when  detected,  the  punishment  is  instant,  and  inflicted 
by  the  husband.  He  cuts  off  the  hair  of  his  guilty  wife,  and,  having 
assembled  her  relations,  expels  her  naked  from  his  house,  pursuing 
her  with  stripes  through  the  village.  To  public  loss  of  honour  no 
favour  is  shown.  She  may  possess  beauty,  youth,  and  riches; 
but  a  husband  she  can  never  obtain.  Vice  is  not  treated  by  the 
Germans  as  a  subject  of  raillery,  nor  is  the  profligacy  of  corrupting 
and  being  corrupted  called  the  fashion  of  the  age.  By  the  practice 
of  some  states,  female  virtue  is  advanced  to  still  higher  perfection  : 
with  them  none  but  virgins  marry.  When  the  bride  has  flxed  her 
choice,  her  hopes  of  matrimony  are  closed  for  life.  With  one  hus- 
band, as  with  one  life,  one  mind,  one  body,  every  woman  is  satis- 
fied ;  in  him  her  happiness  is  centred ;  her  desires  extend  no  further ; 
and  the  principle  is  not  only  an  affection  for  her  husband's  person, 
but  a  reverence  for  the  married  state.  To  set  limits  to  population, 
by  rearing  up  only  a  certain  number  of  children,  and  destroying 
the  rest,  is  accounted  a  flagitious  crime.  Among  the  savages  of 
Germany,  virtuous  manners  operate  more  than  good  laws  in  other 
countries. 

XX.  In  every  family  the  children  are  reared  up  in  filth.  They 
run  about  naked,  and  in  time  grow  up  to  that  strength  and  size  of 
limb  which  we  behold  with  wonder.  The  infant  is  nourished  at 
the  mother's  breast,  not  turned  over  to  nurses  and  to  servants. 
No  distinction  is  made  between  the  future  chieftain  and  the  infant 
son  of  a  common  slave.  On  the  same  ground,  and  mixed  with  the 
same  cattle,  they  pass  their  days,  till  the  age  of  manhood  draws 
the  line  of  separation,  and  early  valour  shows  the  person  of  in- 
genuous birth.  In  the  warm  season  of  mutual  vigour  the  match 
[marriage]  is  made,  and  the  children  of  the  marriage  have  the 
constitution  of  their  parents.     The  uncle  by  the  mother's  side 


106  GENERAL   LITERATURE  [Part  I. 

regards  his  nephews  with  an  affection  nothing  inferior  to  that  of 
their  father.  With  some,  the  relation  of  the  sister's  children  to 
their  maternal  uncle  is  held  to  be  the  strongest  tie  of  consanguinity, 
insomuch  that  in  demanding  hostages,  that  line  of  kindred  is  pre- 
ferred, as  the  most  endearing  objects  of  the  family,  and,  conse- 
quently, the  most  tender  pledges.  The  son  is  always  heir  to  his 
father.  Last  wills  and  testaments  are  not  in  use.  In  case  of 
failure  of  issue,  the  brothers  of  the  deceased  are  next  in  succession, 
or  else  the  paternal  or  maternal  uncles.  A  numerous  train  of 
relations  is  the  comfort  and  the  honour  of  old  age.  To  live  with- 
out raising  heirs  to  yourself  is  no  advantage  in  Germany. 

XXI.  To  adopt  the  quarrels  as  well  as  the  friendships  of  your 
parents  and  relations  is  held  to  be  an  indispensable  duty.  In 
their  resentments,  however,  they  are  not  implacable.  Injuries  are 
adjusted  by  a  settled  measure  of  compensation.  Atonement  is 
made  for  homicide  by  a  certain  number  of  cattle,  and  by  that 
satisfaction  the  whole  family  is  appeased :  a  happy  regulation, 
than  which  nothing  can  be  more  conducive  to  the  public  interest, 
since  it  serves  to  curb  that  spirit  of  revenge  which  is  the  natural 
result  of  liberty  in  the  excess.  Hospitality  and  convivial  pleasures 
are  nowhere  so  liberally  enjoyed.  To  refuse  admittance  to  a  guest 
were  an  outrage  against  humanity.  The  master  of  the  house 
welcomes  every  stranger,  and  regales  him  to  the  best  of  his  ability. 
If  his  stock  falls  short,  he  becomes  a  visitor  to  his  neighbour,  and 
conducts  his  new  acquaintance  to  a  more  plentiful  table.  They 
do  not  wait  to  be  invited,  nor  is  it  of  any  consequence,  since  a 
cordial  reception  is  always  certain.  Between  an  intimate  and  an 
entire  stranger  no  distinction  is  made.  The  law  of  hospitality  is 
the  same.  The  departing  guest  receives  as  a  present  whatever 
he  desires,  and  the  host  retaliates  by  asking  with  the  same  freedom. 
A  German  delights  in  the  gifts  which  he  receives ;  yet  by  bestow- 
ing he  imputes  nothing  to  you  as  a  favour,  and  for  what  he  receives 
he  acknowledges  no  obligation. 

XXII.  In  this  manner  the  Germans  pride  themselves  upon  their 
frankness  and  generosity.  Their  hours  of  rest  are  protracted  to 
broad  daylight.  As  soon  as  they  rise,  the  first  thing  they  do  is  to 
bathe,  and  generally,  on  account  of  the  intense  severity  of  the 
climate,  in  warm  water.  They  then  betake  themselves  to  their 
meal,  each  on  a  separate  seat,  and  at  his  own  table.  Having 
finished  their  repast,  they  proceed  completely  armed  to  the  des- 
patch of  business, .  and  frequently  to  a  convivial  meeting.  To 
devote  both  day  and  night  to  deep  drinking  is  a  disgrace  to  no  man. 


Chap.  V.]  TACITUS     GERMANIA  107 

Disputes,  as  will  be  the  case  with  people  in  liquor,  frequently  arise, 
and  are  seldom  confined  to  opprobrious  language.  The  quarrel 
generally  ends  in  a  scene  of  blood.  Important  subjects,  such  as 
the  reconciliation  of  enemies,  the  forming  of  family  alliances, 
the  election  of  chiefs,  and  even  peace  and  war,  are  generally  can- 
vassed in  their  carousing  festivals.  The  convivial  moment, 
according  to  their  notion,  is  the  true  season  for  business,  when  the 
mind  opens  itself  in  plain  simplicity,  or  grows  warm  with  bold  and 
noble  ideas.  Strangers  to  artifice,  and  knowing  no  refinement, 
they  tell  their  sentiments  without  disguise.  The  pleasure  of  the 
table  expands  their  hearts,  and  calls  forth  every  secret.  On  the 
following  day  the  subject  of  debate  is  again  taken  into  considera- 
tion, and  thus  two  different  periods  of  time  have  their  distinct 
uses ;  when  warm,  they  debate ;  when  cool,  they  decide. 

XXIII.  Their  beverage  is  a  liquor  drawn  from  barley  or  from 
wheat,  and,  like  the  juice  of  the  grape,  fermented  to  a  spirit.  The 
settlers  on  the  banks  of  the  Rhine  provide  themselves  with  wine. 
Their  food  is  of  the  simplest  kind;  wild  apples,  the  flesh  of  an 
animal  recently  killed,  or  coagulated  milk.  Without  skill  in 
cookery,  or  without  seasoning  to  stimulate  the  palate,  they  eat  to 
satisfy  nature.  But  they  do  not  drink  merely  to  quench  their 
thirst.  Indulge  their  love  of  liquor  to  the  excess  which  they  re- 
quire, and  you  need  not  employ  the  terror  of  your  arms;  their 
own  vices  will  subdue  them. 

XXIV.  Their  public  spectacles  boast  of  no  variety.  They  have 
but  one  sort,  and  that  they  repeat  at  all  their  meetings.  A  band  of 
young  men  make  it  their  pastime  to  dance  entirely  naked  amidst 
pointed  swords  and  javelins.  By  constant  exercise,  this  kind  of 
exhibition  has  become  an  art,  and  art  has  taught  them  to  perform 
with  grace  and  elegance.  Their  talents,  however,  are  not  let  out 
for  hire.  Though  some  danger  attends  the  practice,  the  pleasure 
of  the  spectator  is  their  only  recompense.  In  the  character  of  a 
German  there  is  nothing  so  remarkable  as  his  passion  for  play. 
Without  the  excuse  of  liquor  (strange  as  it  may  seem!),  in  their 
cool  and  sober  moments  they  have  recourse  to  dice,  as  to  a  serious 
and  regular  business,  with  the  most  desperate  spirit  committing 
their  whole  substance  to  chance,  and  when  they  have  lost  their  all, 
putting  their  liberty  and  even  their  persons  upon  the  last  hazard 
of  the  die.  The  loser  yields  himself  to  slavery.  Young,  robust, 
and  valiant,  he  submits  to  be  chained,  and  even  exposed  to  sale. 
Such  is  the  effect  of  a  ruinous  and  inveterate  habit.  They  are 
victims  to  folly,  and  they  call  themselves  men  of  honour.     The 


108  GENERAL   LITERATURE  [Part  I. 

winner  is  always  in  a  hurry  to  barter  away  the  slaves  acquired  by 
success  at  play ;  he  is  ashamed  of  his  victory,  and  therefore  puts 
away  the  remembrance  of  it  as  soon  as  possible. 

XXV.  The  slaves  in  general  are  not  arranged  at  their  several 
employments  in  the  household  affairs,  as  is  the  practice  at  Rome. 
Each  has  his  separate  habitation,  and  his  own  establishment  to 
manage.  The  master  considers  him  as  an  agrarian  dependent, 
who  is  obliged  to  furnish  a  certain  quantity  of  grain,  of  cattle,  or  of 
wearing  apparel.  The  slave  obeys,  and  the  state  of  servitude  ex-- 
tends  no  further.  All  domestic  affairs  are  managed  by  the  master's 
wife  and  children.  To  punish  a  slave  with  stripes,  to  load  him  with 
chains,  or  condemn  him  to  hard  labour,  is  unusual.  It  is  true,  that 
slaves  are  sometimes  put  to  death,  not  under  colour  of  justice,  or  of 
any  authority  vested  in  the  master ;  but  in  a  transport  of  passion, 
in  a  fit  of  rage,  as  is  often  the  case  in  a  sudden  affray ;  but  it  is 
also  true,  that  this  species  of  homicide  passes  with  impunity.  The 
freedmen  are  not  of  much  higher  consideration  than  the  actual 
slaves;  they  obtain  no  rank  in  the  master's  family,  and,  if  we 
except  the  parts  of  Germany  where  monarchy  is  established,  they 
never  figure  on  the  stage  of  public  business.  In  despotic  govern- 
ments they  rise  above  the  men  of  ingenuous  birth,  and  even  eclipse 
the  whole  body  of  the  nobles.  In  other  states  the  subordination  of 
the  freedmen  is  a  proof  of  public  liberty. 

XXVI.  The  practice  of  placing  money  at  interest,  and  reaping 
the  profits  of  usury,  is  unknown  in  Germany;  and  that  happy 
ignorance  is  a  better  prevention  of  the  evil  than  a  code  of  prohibi- 
tory laws.  In  cultivating  the  soil,  they  do  not  settle  on  one  spot, 
but  shift  from  place  to  place.  The  state  or  community  takes 
possession  of  a  certain  tract  proportioned  to  its  number  of  hands ; 
allotments  are  afterwards  made  to  individuals  according  to  their 
rank  and  dignity.  In  so  extensive  a  country,  where  there  is  no 
want  of  land,  the  partition  is  easily  made.  The  ground  tilled  in 
one  year,  lies  fallow  the  next,  and  a  sufficient  quantity  always  re- 
mains, the  labour  of  the  people  being  by  no  means  adequate  to  the 
extent  or  goodness  of  the  soil.  Nor  have  they  the  skill  to  make 
orchard  plantations,  to  enclose  the  meadow  grounds,  or  to  lay  out 
and  water  gardens.  From  the  earth  they  demand  nothing  but 
corn.  Hence  their  year  is  not,  as  with  the  Romans,  divided  into 
four  seasons.  They  have  distinct  ideas  of  winter,  spring,  and  sum- 
mer, and  their  language  has  terms  for  each ;  but  they  neither  know 
the  blessings  nor  the  name  of  autumn. 

XXVII.  Their  funerals  have  neither  pomp  nor  vain  ambition. 


Chap.  V.]  TACITUS*    GERMANIA  109 

When  the  bodies  of  illustrious  men  are  to  be  burned,  they  choose  a 
particular  kind  of  wood  for  the  purpose,  and  have  no  other  atten- 
tion. The  funeral  pile  is  neither  strewed  with  garments  nor  en- 
riched with  fragrant  spices.  The  arms  of  the  deceased  are  com- 
mitted to  the  flames,  and  sometimes  his  horse.  A  mound  of  turf 
is  raised  to  his  memory,  and  this,  in  their  opinion,  is  a  better 
sepulchre  than  those  structures  of  laboured  grandeur,  which  dis- 
play the  weakness  of  human  vanity,  and  are,  at  best,  a  burden  to 
the  dead.  Tears  and  lamentations  are  soon  at  an  end,  but  their 
regret  does  not  so  easily  wear  away.  To  grieve  for  the  departed 
is  comely  in  the  softer  sex.  The  women  weep  for  their  friends; 
the  men  remember  them. 

XXVIII .  This  is  the  sum  of  what  I  have  been  able  to  collect 
touching  the  origin  of  the  Germans,  and  the  general  manners  of 
the  people.  I  now  shall  enter  into  a  more  minute  description  of  the 
several  states,  their  peculiar  rites,  and  the  distinctive  character  of 
each ;  observing  at  the  same  time,  which  were  the  nations  that  first 
passed  the  Rhine,  and  transplanted  themselves  into  Gaul.  That 
the  Gauls,  in  ancient  times,  were  superior  to  the  Germans,  we  have 
the  authority  of  Julius  Caesar,  that  illustrious  historian  of  his  own 
affairs.  From  what  is  stated  by  that  eminent  writer,  it  is  highly 
probable  that  colonies  from  Gaul  passed  over  into  Germany :  for, 
in  fact,  how  could  a  river  check  the  migrations  of  either  nation, 
when  it  increased  in  strength,  and  multiplied  its  numbers?  So 
weak  an  obstacle  could  not  repel  them  from  taking  possession  of  a 
country,  not  as  yet  marked  out  by  power,  and  of  course,  open  to  the 
first  occupant.  We  find,  accordingly,  that  the  whole  region 
between  the  Hercynian  forest,  the  Maine  and  the  Rhine,  was  occu- 
pied by  the  Helvetians,  and  the  tract  beyond  it  by  the  Boians; 
both  originally  Gallic  nations.  The  name  of  Boiemum,  which 
remains  to  this  day,  shows  the  ancient  state  of  the  country,  though 
it  has  since  received  a  new  race  of  inhabitants.  Whether  the 
Araviscians,  who  settled  in  Pannonia,  were  originally  a  colony  from 
the  Osi,  a  people  of  Germany ;  or,  on  the  other  hand,  whether  the 
Osi  overflowed  into  Germany  from  the  Araviscians,  cannot  now  be 
ascertained.  This  much  is  certain,  the  laws,  the  manners,  and 
language  of  both  nations  are  still  the  same.  But  which  of  them 
first  passed  the  Danube?  The  same  good  and  evil  were  to  be 
found  on  both  sides  of  the  river ;  equal  poverty  and  equal  indepen- 
dence. To  be  thought  of  German  origin  is  the  ambition  of  the 
Treverians  and  the  Nervians,  both  conceiving,  that  the  reproach 
of  Gallic  softness  and  effeminacy,  which  still  infect  their  national 


110  GENERAL   LITERATURE  [Part  I. 

manners,  may  be  lost  in  the  splendour  of  a  warlike  descent.  The 
Vangiones,  the  Tribocians,  and  the  Nemetes,  who  stretch  along 
the  banks  of  the  Rhine,  are,  beyond  all  doubt,  of  German  extrac- 
tion. The  Ubians,  for  their  services,  were  made  a  Roman  colony, 
and,  with  their  own  consent,  became  known  by  the  name  of 
Agrippinians,  in  honour  of  their  founder ;  and  yet  they  still  look 
back  with  pride  to  their  German  origin.  They  issued  formerly 
from  that  country,  and,  having  given  proof  of  their  fidelity,  ob- 
tained an  allotment  of  territory  on  the  banks  of  the  Rhine,  not 
so  much  with  a  view  to  their  security,  as  to  make  them  a  guard  to 
defend  the  Roman  frontier. 

XXIX.  Of  all  these  various  nations  the  Batavians  are  the  most 
brave  and  warlike.  Incorporated  formerly  with  the  Cattians,  but 
driven  out  by  intestine  divisions,  they  took  possession  of  an  island, 
formed  by  the  river  Rhine,  where,  without  any  extent  of  land  on  the 
continent,  they  established  a  canton  in  alliance  with  the  Romans. 
The  honour  of  that  ancient  friendship  they  still  enjoy,  with  the 
addition  of  peculiar  privileges.  They  are  neither  insulted  with 
taxes,  nor  harrassed  by  revenue  officers.  Free  from  burdens,  im- 
posts, and  tributes,  they  are  reserved  for  the  day  of  battle;  a 
nursery  of  soldiers.  The  Mattiaci  are  in  like  manner  attached  to 
the  interest  of  the  Romans.  In  fact,  the  limits  of  the  empire  have 
been  enlarged,  and  the  terror  of  our  arms  has  spread  beyond  the 
Rhine  and  the  former  boundaries.  Hence  the  Mattiaci,  still  enjoy- 
ing their  own  side  of  the  river,  are  Germans  by  their  situation,  yet 
in  sentiment  and  principle  the  friends  of  Rome ;  submitting,  like  the 
Batavians,  to  the  authority  of  the  empire ;  but  never  having  been 
transplanted,  they  still  retain,  from  their  soil  and  climate,  all  the 
fierceness  of  their  native  character.  The  people  between  the  Rhine 
and  the  Danube,  who  occupy  a  certain  tract,  subject  to  an  impost 
of  one  tenth,  and  therefore  called  the  Decumate  lands,  are  not  to 
be  reckoned  among  the  German  nations.  The  Gauls,  from  their 
natural  levity  prone  to  change,  and  rendered  desperate  by  their 
poverty,  were  the  first  adventurers  into  that  vacant  region.  The 
Roman  frontier,  in  process  of  time,  being  advanced,  and  garrisons 
stationed  at  proper  posts,  that  whole  country  became  part  of  a 
province,  and  the  inhabitants  of  course  were  reduced  to  subjection. 

XXX.  Beyond  the  Mattiaci  lies  the  territory  of  the  Cattians, 
beginning  at  the  Hercynian  forest,  but  not,  like  other  parts  of 
Germany,  a  wide  and  dreary  level  of  fens  and  marshes.  A  con- 
tinued range  of  hiljs  extends  over  a  prodigious  tract,  till  growing 
thinner  by  degrees  they  sink  at  last  into  an  open  country.     The 


Chap.  V.]  TACITUS'   GERMANIA  111 

Hercynian  forest  attends  its  favourite  Cattians  to  their  utmost 
boundary,  and  there  leaves  them,  as  it  were,  with  regret.  The 
people  are  robust  and  hardy ;  their  limbs  well  braced ;  their  coun- 
tenance fierce,  and  their  minds  endowed  with  vigour  beyond  the 
rest  of  their  countrymen.  Considered  as  Germans,  their  under- 
standing is  quick  and  penetrating.  They  elect  officers  fit  to  com- 
mand, and  obey  them  implicitly ;  they  keep  their  ranks,  and  know 
how  to  seize  their  opportunity;  they  restrain  their  natural  im- 
petuosity, and  wait  for  the  attack ;  they  arrange  with  judgment 
the  labours  of  the  day,  and  throw  up  intrenchments  for  the  night ; 
trusting  little  to  fortune,  they  depend  altogether  on  their  valour ; 
and,  what  is  rare  in  the  history  of  Barbarians,  and  never  attained 
without  regular  discipline,  they  place  their  confidence,  not  in  the 
strength  of  their  armies,  but  entirely  in  their  general.  The  in- 
fantry is  their  main  strength.  Each  soldier  carries,  besides  his 
arms,  his  provision  and  a  parcel  of  military  tools.  You  may  see 
other  armies  rushing  to  a  battle;  the  Cattians  march  to  a  war. 
To  skirmish  in  detached  parties,  or  to  sally  out  on  a  sudden  emer- 
gence, is  not  their  practice.  A  victory  hastily  gained,  or  a  quick 
retreat,  may  suit  the  genius  of  the  cavalry ;  but  all  that  rapidity, 
in  the  opinion  of  the  Cattians,  denotes  want  of  resolution :  per- 
severance is  the  true  mark  of  courage. 

XXXI.  A  custom,  known,  indeed,  in  other  parts  of  Germany, 
but  adopted  only  by  a  few  individuals  of  a  bold  and  ardent  spirit, 
is  with  the  Cattians  a  feature  of  the  national  character.  From  the 
age  of  manhood  they  encourage  the  growth  of  their  hair  and  beard ; 
nor  will  any  one,  till  he  has  slain  an  enemy^  divest  himself  of  that 
excrescence,  which  .by  a  solemn  vow  he  has  devoted  to  heroic 
virtue.  Over  the  blood  and  spoils  of  the  vanquished,  the  face  of 
the  warrior  is,  for  the  first  time,  displayed.  The  Cattian  then 
exults;  he  has  now  answered  the  true  end  of  his  being,  and  has 
proved  himself  worthy  of  his  parents  and  his  country.  The  slug- 
gard continues  unshorn,  with  the  uncouth  horrors  of  his  visage 
growing  wilder  to  the  close  of  his  days.  The  men  of  superior 
courage  and  uncommon  ferocity  wear  also  an  iron  ring,  in  that 
country  a  badge  of  infamy,  and  with  that,  as  with  a  chain,  they 
appear  self -condemned  to  slavery,  till  by  the  slaughter  of  an  enemy 
they  have  redeemed  their  freedom.  With  this  extraordinary  habit, 
the  Cattians  are  in  general  much  delighted.  They  grow  grey 
under  a  vow  of  heroism,  and  by  their  voluntary  distinctions  render 
themselves  conspicuous  to  their  friends  and  enemies.  In  every 
engagement  the  first  attack  is  made  by  them  :  they  claim  the  front 


112  GENERAL   LITERATURE  [Part  I, 

of  the  line  as  their  right,  presenting  to  the  enemy  an  appearance 
wild  and  terrible.  Even  in  the  time  of  peace  they  retain  the  same 
ferocious  aspect ;  never  softened  with  an  air  of  humanity.  They 
have  no  house  to  dwell  in,  no  land  to  cultivate,  no  domestic  care  to 
employ  them.  Wherever  chance  conducts  them,  they  are  sure  of 
being  maintained.  Lavish  of  their  neighbours'  substance,  and 
prodigal  of  their  own,  they  persist  in  this  course,  till  towards  the 
decline  of  life  their  drooping  spirit  is  no  longer  equal  to  the  exertions 
of  a  fierce  and  rigid  virtue. 

XXXII.  The  Usi plans  and  Tencterians  border  on  the  Cattians. 
Their  territory  lies  on  the  banks  of  the  Rhine,  where  that  river, 
still  flowing  in  one  regular  channel,  forms  a  sufficient  boundary.  In 
addition  to  their  military  character,  the  Tencterians  are  famous 
for  the  discipline  of  their  cavalry.  Their  horse  is  no  way  inferior 
to  the  infantry  of  the  Cattians.  The  wisdom  of  their  ancestors 
formed  the  military  system,  and  their  descendants  hold  it  in  venera- 
tion. Horsemanship  is  the  pride  of  the  whole  country,  the  pastime 
of  their  children,  the  emulation  of  their  youth,  and  the  habit  of  old 
age.  With  their  goods  and  valuable  effects  their  horses  pass  as 
part  of  the  succession,  not  however,  by  the  general  rule  of  inheri- 
tance, to  the  eldest  son,  but,  in  a  peculiar  line,  to  that  son  who 
stands  distinguished  by  his  valour  and  his  exploits  in  war. 

XXXIII.  In  the  neighbourhood  of  the  last-mentioned  states 
formerly  occurred  the  Bructerians,  since  that  time  dispossessed  of 
their  territory,  and,  as  fame  reports,  now  no  longer  a  people. 
The  Chamavians  and  Angrivarians,  it  is  said,  with  the  consent  of 
the  adjacent  tribes,  invaded  the  country,  and  pursued  the  ancient 
settlers  with  exterminating  fury.  The  intolerable  pride  of  the 
Bructerians  drew  upon  them  this  dreadful  catastrophe.  The  love 
of  plunder  was,  no  doubt,  a  powerful  motive ;  and,  perhaps,  the 
event  was  providentially  ordained  in  favour  of  the  Roman  people. 
Certain  it  is,  the  gods  have  of  late  indulged  us  with  the  view  of  a 
fierce  engagement,  and  a  scene  of  carnage,  in  which  above  sixty 
thousand  of  the  enemy  fell  a  sacrifice,  not  to  the  arms  of  Rome,  but, 
more  magnificent  still !  to  the  rage  of  their  own  internal  discord,  all 
cut  off,  as  it  were  in  a  theatre  of  war,  to  furnish  a  spectacle  to  the 
Roman  army.  May  this  continue  to  be  the  fate  of  foreign  nations  ! 
If  not  the  friends  of  Rome,  let  them  be  enemies  to  themselves. 
For  in  the  present  tide  of  our  affairs,  what  can  fortune  have  in 
store  so  devoutly  to  be  wished  for  as  civil  dissension  amongst  our 
enemies  ? 

XXXIV.  At  the  back  of  the  states,  which  I  have  now  described,, 


[AP.  v.]  TACITUS'    GERMANIA  113 

fe  the  Dulgibinlans  and  the  Chasuarians,  with  other  nations  of 
iferior  note.  In  front  occurs  the  country  of  the  Frisians,  divided 
ito  two  communities,  called,  on  account  of  their  degrees  of 
trength,  the  Greater  and  the  Lesser  Frisia.  Both  extend  along 
■the  margin  of  the  Rhine  as  far  as  the  ocean,  enclosing  within  their 
limits  lakes  of  vast  extent,  where  the  fleets  of  Rome  have  spread 
their  sails.  Through  that  outlet  we  have  attempted  the  Northern 
Ocean,  where,  if  we  may  believe  the  account  of  navigators,  the 
Pillars  of  Hercules  are  seen  still  standing  on  the  coast ;  whether 
it  be,  that  Hercules  did  in  fact  visit  those  parts,  or  that  whatever 
is  great  and  splendid  in  all  quarters  of  the  globe  is  by  common 
consent  ascribed  to  that  ancient  hero.  Drusus  Germanicus  was 
an  adventurer  in  those  seas.  He  did  not  want  a  spirit  of  enter- 
prise; but  the  navigation  was  found  impracticable  in  that  tem- 
pestuous ocean,  which  seemed  to  forbid  any  further  discovery  of  its 
own  element,  or  the  labours  of  Hercules.  Since  that  time  no 
expedition  has  been  undertaken :  men  conceived  that  to  respect 
the  mysteries  of  the  gods,  and  believe  without  inquiry,  would  be 
the  best  proof  of  veneration. 

XXXV.  We  have  hitherto  traced  the  western  side  of  Germany. 
From  the  point  where  we  stop,  it  stretches  away  with  a  prodigious 
sweep  towards  the  north.  In  this  vast  region,  the  first  territory 
that  occurs  is  that  of  the  Chaucians,  beginning  on  the  confines  of 
the  Frisians,  and,  though  at  the  extremity  bounded  by  the  sea- 
shore, yet  running  at  the  back  of  all  the  nations  already  described, 
till,  with  an  immense  compass,  it  reaches  the  borders  of  theCattians. 
Of  this  immeasurable  tract  it  is  not  sufficient  to  say  that  the 
Chaucians  possess  it :  they  even  people  it.  Of  all  the  German 
nations,  they  are,  beyond  aH  question,  the  most  respectable. 
Their  grandeur  rests  upon  the  surest  foundation,  the  love  of 
justice ;  wanting  no  extension  of  territory,  free  from  avarice  and 
ambition,  remote  and  happy,  they  provoke  no  wars,  and  never 
seek  to  enrich  themselves  by  rapine  and  depredation.  Their 
importance  among  the  nations  round  them  is  undoubtedly  great  ; 
but  the  best  evidence  of  it  is,  that  they  have  gained  nothing  by 
injustice.  Loving  moderation,  yet  uniting  to  it  a  warlike  spirit, 
they  are  ever  ready  in  a  just  cause  to  unsheathe  the  sword.  Their 
armies  are  soon  in  the  field.  In  men  and  horses,  their  resources 
are  great,  and  even  in  profound  tranquillity  their  fame  is  never 
tarnished. 

XXXVI.  Bordering  on  the  side  of  the  Chaucians,  and  also  of 
the  Cattians,  lies  the  country  of  the  Cheruscans ;    a  people  by  a 


1 14  GENERAL   LITERATURE  [Part  I. 

long  disuse  of  arms  enervated  and  sunk  in  sloth.  Unmolested 
by  their  neighbours,  they  enjoyed  the  sweets  of  peace,  forgetting 
that  amidst  powerful  and  ambitious  neighbours,  the  repose  which 
you  enjoy  serves  only  to  lull  you  into  a  calm,  always  pleasing,  but 
deceitful  in  the  end.  When  the  sword  is  drawn,  and  the  power  of 
the  strongest  is  to  decide,  you  talk  in  vain  of  equity  and  modera- 
tion :  those  virtues  always  belong  to  the  conqueror.  Thus  it  has 
happened  to  the  Cheruscans  :  they  were  formerly  just  and  upright ; 
at  present  they  are  called  fools  and  cowards.  Victory  has  trans- 
ferred every  virtue  to  the  Cattians,  and  oppression  takes  the 
name  of  wisdom.  The  downfall  of  the  Cheruscans  drew  after 
it  that  of  the  Fosi,  a  contiguous  nation,  in  their  day  of  pros- 
perity never  equal  to  their  neighbours,  but  fellow-sufferers  in 
their  ruin. 

XXXVII.  In  the  same  northern  part  of  Germany  we  find  the 
Cimbrians  on  the  margin  of  the  ocean ;  a  people  at  present  of  small 
consideration,  though  their  glory  can  never  die.  Monuments  of 
their  former  strength  and  importance  are  still  to  be  seen  on  either 
shore.  Their  camps  and  lines  of  circumvallation  are  not  yet 
erased.  From  the  extent  of  ground  which  they  occupied,  you  may 
even  now  form  an  estimate  of  the  force  and  resources  of  the  state, 
and  the  account  of  their  grand  army,  which  consisted  of  such 
prodigious  numbers,  seems  to  be  verified.  It  was  in  the  year  of 
Rome  six  hundred  and  forty,  in  the  consulship  of  Csecilius  Metellus 
and  Papirius  Carbo,  that  the  arms  of  the  Cimbrians  first  alarmed 
the  world.  If  from  that  period  we  reckon  to  the  second  consul- 
ship of  the  emperor  Trajan,  w^e  shall  find  a  space  of  near  two 
hundred  and  ten  years :  so  long  has  Germany  stood  at  bay  with 
Rome !  In  the  course  of  so  obstinate  a  struggle,  both  sides  have 
felt  alternately  the  severest  blows  of  fortune,  and  the  worst  calami- 
ties of  war.  Not  the  Samnite,  nor  the  republic  of  Carthage,  nor 
Spain,  nor  Gaul,  nor  even  the  Parthian,  has  given  such  frequent 
lessons  to  the  Roman  people.  The  powder  of  the  Arsacidse  was  not 
so  formidable  as  German  liberty.  If  we  except  the  slaughter  of 
Crassus  and  his  army,  what  has  the  east  to  boast  of  ?  Their  own 
commander,  Pacorus,  was  cut  off,  and  the  whole  nation  was  hum- 
bled by  the  victor  of  Ventidius.  The  Germans  can  recount  their 
triumphs  over  Carbo,  Cassius,  Scaurus  Aurelius,  Servilius  Csepio, 
and  Cneius  ManKus,  all  defeated,  or  taken  prisoners.  With  them 
the  republic  lost  five  consular  armies ;  and  since  that  time,  in  the 
reign  of  Augustus,  Varus  perished  with  his  three  legions.  Caius 
Marius,  it  is  true,  defeated  the  Germans  in  Italy ;  Julius  Csesar 


Chap.  V.]  TACITUS'    GERMANIA  115 

made  them  retreat  from  Gaul :  and  Drusus,  Tiberius,  and  Ger- 
manicus,  overpowered  them  in  their  own  country ;  but  how  much 
blood  did  those  victories  cost  us  !  The  mighty  projects  of  Caligula 
ended  in  a  ridiculous  farce.  From  that  period  an  interval  of  peace 
succeeded,  till,  roused  at  length  by  the  dissensions  of  Rome,  and 
the  civil  wars  that  followed,  they  stormed  our  legions  in  their 
winter  quarters,  and  even  planned  the  conquest  of  Gaul.  Indeed 
we  forced  them  to  repass  the  Rhine ;  but  from  that  time  what  has 
been  our  advantage?  We  have  triumphed,  and  Germany  is  still 
unconquered. 

XXXVIII.  The  Suevians  are  the  next  that  claim  attention. 
Possessing  the  largest  portion  of  Germany,  they  do  not,  like  the 
Cattians  and  Tencterians,  form  one  state  or  community,  but  have 
among  themselves  several  subdivisions,  or  inferior  tribes,  known  by 
distinct  appellations,  yet  all  comprehended  under  the  general 
name  of  Suevians.  It  is  the  peculiar  custom  of  this  people  to 
braid  the  hair,  and  tie  it  up  in  a  knot.  Between  them  and  the 
rest  of  the  Germans  this  is  the  mark  of  distinction.  In  their  own 
country  it  serves  to  discriminate  the  free-born  from  the  slave. 
If  the  same  mode  is  seen  in  other  states,  introduced  by  ties  of 
consanguinity,  or,  as  often  happens,  by  the  propensity  of  men  to 
imitate  foreign  manners,  the  instances  are  rare,  and  confined 
entirely  to  the  season  of  youth.  With  the  Suevians  the  custom 
is  continued  through  life  :  men  far  advanced  in  years  are  seen  with 
their  hoary  locks  interwoven,  and  fastened  behind,  or  sometimes 
gathered  into  a  shaggy  knot  on  the  crown  of  the  head.  The  chiefs 
are  more  nicely  adjusted :  they  attend  to  ornament,  but  it  is  a 
manly  attention,  not  the  spirit  of  intrigue  or  the  affectation  of 
appearing  amiable  in  the  eyes  of  women.  When  going  to  engage 
the  enemy,  they  fancy  that  from  the  high  structure  of  their 
hair  they  appear  taller  and  gain  an  air  of  ferocity.  Their  dress  is  a 
preparation  for  battle. 

XXXIX.  The  Semnones  are  ambitious  to  be  thought  the  most 
ancient  and  respectable  of  the  Suevian  nation.  Their  claim  they 
think  confirmed  by  the  mysteries  of  religion.  On  a  stated  day  a 
procession  is  made  into  a  wood  consecrated  in  ancient  times,  and 
rendered  awful  by  auguries  delivered  down  from  age  to  age.  The 
several  tribes  of  the  same  descent  appear  by  their  deputies.  The 
rites  begin  with  the  slaughter  of  a  man,  who  is  offered  as  a  victim, 
and  thus  their  barbarous  worship  is  celebrated  by  an  act  of  horror. 
The  grove  is  beheld  with  superstitious  terror.  No  man  enters 
that  holy  sanctuary  without  being  bound  with  a  chain,  thereby 


116  GENERAL   LITERATURE  [Part  I. 

denoting  his  humble  sense  of  his  own  condition,  and  the  superior 
attributes  of  the  deity  that  fills  the  place.  Should  he  happen  to 
fall,  he  does  not  presume  to  rise,  but  in  that  groveUing  state  makes 
his  way  out  of  the  wood.  The  doctrine  intended  by  this  bigotry 
is,  that  from  this  spot  the  whole  nation  derives  its  origin,  and  that 
here  is  the  sacred  mansion  of  the  all-ruling  mind,  the  supreme  God 
of  the  universe,  who  holds  everything  else  in  a  chain  of  depen- 
dence on  his  will  and  pleasure.  To  these  tenets  much  credit 
arises  from  the  weight  and  influence  of  the  Semnones,  a  populous 
nation,  distributed  into  a  hundred  cantons,  and  by  the  vast 
extent  of  their  territory  entitled  to  consider  themselves  as  the  head 
of  the  Suevian  nation. 

XL.  The  Langobards  exhibit  a  contrast  to  the  people  last 
described.  Their  dignity  is  derived  from  the  paucity  of  their 
numbers.  Surrounded  as  they  are  by  great  and  powerful  nations, 
they  live  independent,  owing  their  security  not  to  mean  compli- 
ances, but  to  that  warlike  spirit  with  which  they  encounter  danger. 
To  these  succeed  in  regular  order  the  Reudignians,  the  Aviones, 
Angles,  and  Varinians :  the  Eudocians,  Nuithones,  and  Suardo- 
nians,  all  defended  by  rivers,  or  embosomed  in  forests.  In  these 
several  tribes  there  is  nothing  that  merits  attention,  except  that 
they  all  agree  to  worship  the  goddess  Earth,  or  as  they  call  her 
Herth,  whom  they  consider  as  the  common  mother  of  all.  This 
divinity,  according  to  their  notion,  interposes  in  human  affairs, 
and,  at  times,  visits  the  several  nations  of  the  globe.  A  sacred 
grove  on  an  island  in  the  Northern  Ocean  is  dedicated  to  her. 
There  stands  her  sacred  chariot,  covered  with  a  vestment,  to  be 
touched  by  the  priest  only.  When  she  takes  her  seat  in  this  holy 
vehicle,  he  becomes  immediately  conscious  of  her  presence,  and  in 
his  fit  of  enthusiasm  pursues  her  progress.  The  chariot  is  drawn 
by  cows  yoked  together.  A  general  festival  takes  place,  and  public 
rejoicings  are  heard,  wherever  the  goddess  directs  her  way.  No 
war  is  thought  of ;  arms  are  laid  aside,  and  the  sword  is  sheathed. 
The  sweets  of  peace  are  known,  and  then  only  relished.  At  length 
the  same  priest  declares  the  goddess  satisfied  with  her  visitation, 
and  re-conducts  her  to  her  sanctuary.  The  chariot  with  the  sacred 
mantle,  and,  if  we  may  believe  report,  the  goddess  herself,  are 
purified  in  a  secret  lake.  In  this  ablution  certain  slaves  officiate, 
and  instantly  perish  in  the  water.  Hence  the  terrors  of  super- 
stition are  more  widely  diffused;  a  religious  horror  seizes  every 
mind,  and  all  are  content  in  pious  ignorance  to  venerate  that  awful 
mystery,  which  no  man  can  see  and  live.     This  part  of  the  Suevian 


jChap.  v.]  tacitus'  germania  117 

nation  stretches  away  to  the  most  remote  and  unknown  recesses  of 
Germany. 

XLI.  On  the  banks  of  the  Danube  (for  we  shall  now  pursue 
that  river,  in  the  same  manner  as  we  have  traced  the  course  of  the 
Rhine),  the  first  and  nearest  state  is  that  of  the  Hermundurians, 
a  people  in  alliance  with  Rome,  acting  always  with  fidelity,  and 
for  that  reason  allowed  to  trade  not  only  on  the  frontier,  but  even 
within  the  limits  of  the  empire.  They  are  seen  at  large  in*  the 
heart  of  our  splendid  colony  in  the  province  of  Rhsetia,  without 
so  much  as  a  guard  to  watch  their  motions.  To  the  rest  of  the 
Germans  we  display  camps  and  legions,  but  to  the  Hermundurians 
we  grant  the  exclusive  privilege  of  seeing  our  houses  and  our 
elegant  villas.  They  behold  the  splendour  of  the  Romans,  but 
without  avarice,  or  a  wish  to  enjoy  it.  In  the  territories  of  these 
people  the  Elbe  takes  its  rise,  a  celebrated  river,  and  formerly  well 
known  to  the  Romans.     At  present  we  only  hear  of  its  name. 

XLII.  Contiguous  to  the  last-mentioned  people  lies  the  country 
of  the  Nariscans,  and  next  in  order  the  Marcomannians  and  the 
Quadians.  Of  these  the  Marcomannians  are  the  most  eminent 
for  their  strength  and  mihtary  glory.  The  very  territory  now  in 
their  possession  is  the  reward  of  valour,  acquired  by  the  expulsion 
of  the  Boians.  Nor  have  the  Nariscans  or  Quadians  degenerated 
from  their  ancestors.  As  far  as  Germany  is  washed  by  the  Danube, 
these  three  nations  extend  along  the  banks,  and  from  the  frontier  of 
the  country.  The  Marcomannians  and  the  Quadians,  within  our 
own  memory,  obeyed  a  race  of  kings,  born  among  themselves,  the 
illustrious  issue  of  Maroboduus  and  of  Tudrus.  Foreign  princes 
at  present  sway  the  sceptre ;  but  the  strength  of  their  monarchy 
depends  upon  the  countenance  and  protection  of  Rome.  To  our 
arms  they  are  not  often  indebted :  we  choose  rather  to  supply 
them  with  money. 

XLIII.  At  the  back  of  the  Marcomannians  and  Quadians  lie 
several  nations  of  considerable  force,  such  as  the  Marsignians,  the 
Gothinians,  the  Osians,  and  the  Burians.  In  dress  and  language 
the  two  last  resemble  the  Suevians.  The  Gothinians,  by  their 
use  of  the  Gallic  tongue,  and  the  Osians  by  the  dialect  of  Pannonia, 
are  evidently  not  of  German  origin.  A  further  proof  arises  from 
their  submitting  to  the  disgrace  of  paying  tribute,  imposed  upon  them 
as  aliens  and  intruders,  partly  by  the  Sarmatians,  and  partly  by  the 
Quadians.  The  Gothinians  have  still  more  reason  to  blush ; 
they  submit  to  the  drudgery  of  digging  iron  in  mines.  But  a 
small  part  of  the  open  and  level  country  is  occupied  by  these  several 


118  GENERAL   LITERATURE  [Part  I. 

nations :  they  dwell  chiefly  in  forests,  or  on  the  summit  of  that 
continued  ridge  of  mountains,  by  which  Suevia  is  divided  and 
separated  from  other  tribes  that  lie  still  more  remote.  Of  these 
the  Lygians  are  the  most  powerful,  stretching  to  a  great  extent, 
and  giving  their  name  to  a  number  of  subordinate  communities. 
It  will  suffice  to  mention  the  most  considerable;  namely,  the 
Ariajns,  the  Helvecones,  the  Manimians,  the  Elysians,  and  Nahar- 
valians.  The  last  show  a  grove  famous  for  the  antiquity  of  its 
religious  rites.  The  priest  appears  in  a  female  dress.  The  gods 
whom  they  worship  are,  in  the  language  of  the  country,  known  by 
the  name  of  Alcis,  by  Roman  interpreters  said  to  be  Castor  and 
Pollux.  There  are,  indeed,  no  idols  in  their  country ;  no  symbolic 
representation ;  no  traces  of  foreign  superstition.  And  yet  their 
two  deities  are  adored  in  the  character  of  young  men  and  brothers. 
The  Arians  are  not  only  superior  to  the  other  tribes  above  men- 
tioned, but  are  also  more  fierce  and  savage.  Not  content  with  their 
natural  ferocity,  they  study  to  make  themselves  still  more  grim  and 
horrible  by  every  addition  that  art  can  devise.  Their  shields 
are  black ;  their  bodies  painted  of  a  deep  colour  :  and  the  darkest 
night  is  their  time  for  rushing  to  battle.  The  sudden  surprise  and 
funereal  gloom  of  such  a  band  of  sable  warriors  are  sure  to  strike  a 
panic  through  the  adverse  army,  who  fly  the  field,  as  if  a  legion  of 
demons  had  broke  loose  to  attack  them ;  so  true  it  is,  that  in  every 
engagement  the  eye  is  first  conquered.  Beyond  the  Lygians  the 
next  state  is  that  of  the  Gothones,  who  live  under  regal  government, 
and  are,  by  consequence,  ruled  with  a  degree  of  power  more 
rigorous  than  other  parts  of  Germany,  yet  not  unlimited,  nor 
entirely  hostile  to  civil  liberty.  In  the  neighbourhood  of  these 
people,  we  find,  on  the  sea-coast,  the  Rugians  and  Lemovians,  both 
subject  to  royal  authority.  When  their  round  shields  and  short 
swords  are  mentioned,  there  are  no  other  particulars  worthy  of 
notice. 

XLIV.  The  people  that  next  occur  are  the  Suiones,  who  may 
be  said  to  inhabit  the  ocean  itself.  In  addition  to  the  strength  of 
their  armies,  they  have  a  powerful  naval  force.  The  form  of 
their  ships  is  peculiar.  Every  vessel  has  a  prow  at  each  end,  and 
by  that  contrivance  is  always  ready  to  make  head  either  way. 
Sails  are  not  in  use,  nor  is  there  a  range  of  oars  at  the  sides.  The 
mariners,  as  often  happens  in  the  navigation  of  rivers,  take  differ- 
ent stations,  and  shift  from  one  place  to  another,  as  the  exigence 
may  require.  Riches  are  by  this  people  held  in  great  esteem ;  and 
the  public  mind,  debased  by  that  passion,  yields  to  the  govern- 


Chap.  V.]  TACITUS'    GERMANIA  119 

ment  of  one  with  unconditional,  with  passive  obedience.  Despot- 
ism is  here  fully  established.  The  people  are  not  allowed  to  carry 
arms  in  common,  like  the  rest  of  the  German  nations.  An  officer 
is  appointed  to  keep  in  a  magazine  all  the  mihtary  weapons,  and 
for  this  purpose  a  slave  is  always  chosen.  For  this  policy  the 
ostensible  reason  is,  that  the  ocean  is  their  natural  fence  against 
foreign  invasions,  and  in  time  of  peace  the  giddy  multitude,  with 
arms  ready  at  hand,  soon  proceeds  from  luxury  to  tumult  and 
commotion.  But  the  truth  is,  the  jealousy  of  a  despotic  prince 
does  not  think  it  safe  to  commit  the  care  of  his  arsenal  to  the  nobles 
or  the  men  of  ingenuous  birth.  Even  a  manumitted  slave  is  not 
fit  to  be  trusted. 

XLV.  At  the  further  extremity  beyond  the  Suiones  there 
is  another  sea,  whose  sluggish  waters  seem  to  be  in  a  state  of  stagna- 
tion. By  this  lazy  element  the  globe  is  said  to  be  encircled,  and 
the  supposition  receives  some  colour  of  probability  from  an 
extraordinary  phenomenon  well  known  in  those  regions.  The 
rays  of  the  setting  sun  continue  till  the  return  of  day  to  brighten  the 
hemisphere  with  so  clear  a  light,  that  the  stars  are  imperceptible. 
To  this  it  is  added  by  vulgar  credulity,  that  when  the  sun  begins  to 
rise,  the  sound  of  the  emerging  luminary  is  distinctly  heard,  and 
the  very  form  of  the  horses,  the  blaze  of  glory  round  the  head  of 
the  god,  is  palpable  to  the  sight.  The  boundaries  of  nature,  it  is 
generally  believed,  terminate  here. 

On  the  coast  to  the  right  of  the  Suevian  ocean,  the  ^Estyans 
have  fixed  their  habitation.  In  their  dress  and  manners  they 
resemble  the  Suevians,  but  their  language  has  more  affinity  to  the 
dialect  of  Britain.  They  worship  the  mother  of  the  gods.  The 
figure  of  a  wild  boar  is  the  symbol  of  their  superstition ;  and  he, 
who  has  that  emblem  about  him,  thinks  himself  secure  even  in  the 
thickest  ranks  of  the  enemy,  without  any  need  of  arms,  or  any 
other  mode  of  defence.  The  use  of  iron  is  unknown,  and  their 
general  weapon  is  a  club.  In  the  cultivation  of  com,  and  other 
fruits  of  the  earth,  they  labour  with  more  patience  than  is  consistent 
with  the  natural  laziness  of  the  Germans.  Their  industry  is 
exerted  in  another  instance :  they  explore  the  sea  for  amber,  in 
their  language  called  glese,  and  are  the  only  people  who  gather 
that  curious  substance.  It  is  generally  found  among  the  shallows ; 
sometimes  on  the  shore.  Concerning  the  nature  or  the  causes  of 
this  concretion,  the  Barbarians,  with  their  usual  want  of  curiosity, 
make  no  inquiry.  Amongst  other  superfluities  discharged  by  the 
ica,  this  substance  lay  long  neglected,  till  Roman  luxury  gave  it  a 


120  GENERAL   LITERATURE  [Part  I. 

name,  and  brought  it  into  request.  To  the  savages  it  is  of  no  use. 
They  gather  it  in  rude  heaps,  and  offer  it  to  sale  without  any  form 
or  poHsh,  wondering  at  the  price  they  receive  for  it.  Beyond  the 
Suiones,  we  next  find  the  nation  of  Sitones,  differing  in  nothing 
from  the  former,  except  the  tameness  with  which  they  suffer  a 
woman  to  reign  over  them.  Of  this  people,  it  is  not  enough  to 
say,  that  they  have  degenerated  from  civil  liberty ;  they  are  sunk 
below  slavery  itself.  At  this  place  ends  the  territory  of  the 
Suevians. 

XLVI.  Whether  the  Peucinians,  the  Venedians,  and  Fennians, 
are  to  be  accounted  Germans,  or  classed  with  the  people  of  Sarmatia 
is  a  point  not  easy  to  be  determined  :  though  the  Peucinians,  called 
by  some  the  Bastarnians,  bear  a  strong  resemblance  to  the  Ger- 
mans. They  use  the  same  language :  their  dress  and  habitations 
are  the  same,  and  they  are  equally  inured  to  sloth  and  filth.  Of 
late,  however,  in  consequence  of  frequent  intermarriages  between 
their  leading  chieftains  and  the  families  of  Sarmatia,  they  have 
been  tainted  with  the  manners  of  that  country.  The  Venedians 
are  a  counterpart  of  the  Sarmatians :  like  them  they  lead  a  wan- 
dering life,  and  support  themselve  by  plunder  amidst  the  woods 
and  mountains  that  separate  the  Peucinians  and  the  Fennians. 
They  are,  notwithstanding,  to  be  ascribed  to  Germany,  inasmuch 
as  they  have  settled  habitations,  know  the  use  of  shields,  and 
travel  always  on  foot,  remarkable  for  their  swiftness.  The  Sarma- 
tians, on  the  contrary,  live  altogether  on  horseback  or  in  waggons. 
Nothing  can  equal  the  ferocity  of  the  Fennians,  nor  is  there  any- 
thing so  disgusting  as  their  filth  and  poverty.  Without  arms, 
without  horses,  and  without  a  fixed  place  of  abode,  they  lead  a 
vagrant  life ;  their  food  the  common  herbage ;  the  skins  of  beasts 
their  only  clothing;  and  the  bare  earth  their  resting-place.  For 
their  chief  support  they  depend  on  their  arrows,  to  which,  for  want 
of  iron,  they  prefix  a  pointed  bone.  The  women  follow  the  chase  in 
company  with  the  men,  and  claim  their  share  of  the  prey.  To 
protect  their  infants  from  the  fury  of  wild  beasts,  and  the  inclem- 
ency of  the  weather,  they  make  a  kind  of  cradle  amidst  the  branches 
of  trees  interwoven  together,  and  they  know  no  other  expedient. 
The  youth  of  the  country  have  the  same  habitation,  and  amidst  the 
trees  old  age  is  rocked  to  rest.  Savage  as  this  way  of  life  may  seem, 
they  prefer  it  to  the  drudgery  of  the  field,  the  labour  of  building, 
and  the  painful  vicissitudes  of  hope  and  fear,  which  always  attend 
the  defence  and  the  acquisition  of  property.  Secure  against  the 
passions  of  men,  and  fearing  nothing  from  the  anger  of  the  gods. 


Chap.  V.]  TACITUS*   GERMANIA  121 

they  have  attained  that  uncommon  state  of  feHcity,  in  which  there 
is  no  craving  left  to  form  a  single  wish. 

The  rest  of  what  I  have  been  able  to  collect  is  too  much  involved 
in  fable,  of  a  colour  with  the  accounts  of  the  Hellusians  and  the 
Oxionians,  of  whom  we  are  told,  that  they  have  the  human  face, 
with  the  limbs  and  bodies  of  wild  beasts.  But  reports  of  this  kind, 
unsupported  by  proof,  I  shall  leave  to  the  pen  of  others. 


Chapter  VI 


NJALS   SAGA 


[Principal  Characters  (in  the  order  of  their  appearance) 


MoRD  (Fiddle),  lawyer. 

Unna,  daughter  of  Mord. 

Hauskuld,  brother  of  Hrut. 

Hrut. 

Hallgerda,  daughter  of  Haus- 
kuld. 

Glum,  son  of  Olof  the  Halt. 

Thiostolf,  foster-father  of 
Hallgerda. 

GuNNAR,  kinsman  of  Unna. 

Njal,  a  great  lawyer. 

Bergthora,  wife  of  Njal. 

^j  ]  sons  of  Jo- 

Valgard,  ,  ^, 

TTT  A  r      rund  the 

Wolf  Aurpriest, 


of 


Priest. 
Valgard    and 


Mord,    son 

Unna. 
Skarphedinn, 
Grim, 
Helgi, 

ASGRIM, 
SiGFUS, 

KoLSKEGG,  brother  of  Gunnar. 


sons  of  Njal. 


brothers. 


sons  of  Sigfus,  and 
kinsmen  of  Gun- 
nar. 


sons  of  Hauskuld. 


Thrain, 

Kettle, 

Thorkell, 

Mord, 

Lambi, 

SiGMUND, 

Sigurd, 

Thorleik, 

Olof, 

KoL,  grieve  (head  workman)  of 
Hallgerda. 

Swart,  house-carle  of  Njal. 

Brynjolf,  kinsman  of  Hall- 
gerda. 

Thord  (Freedmanson) 

SiGMUND,  a  voyager. 

Skiolld,  companion  of  Sig- 
mund. 

GizuR,  the  White,  a  chief. 

Geir,  the  Priest,  a  friend  of 
Gizur. 

Otkell,  of  Kirkby. 

Thorgeir,  son  of  Otkell. 


1  [This  version  of  Njals  Saga  is  by  Sir  George  Webbe  Dasent  (b.  1817^ 
d.  1896)  and  was  first  published  in  1861  (Edinburgh,  Edmonston  &  Doug- 
las, 2  vols.). 

The  Saga  of  Njal  is  one  of  the  Icelandic  Sagas.  The  time  of  the  sup- 
posed events  is  toward  the  end  of  the  1100  s.  But  the  chronicle  was  not 
written  down  till  about  a  century  later.  The  name  of  the  scribe  is  un- 
known. The  passages  here  reprinted  begin  at  p.  1,  and  continue  with 
omissions  to  nearly  the  end  of  the  Saga.] 

122 


Chap.  VI.] 


NJALS    SAGA 


123 


Skamkell,  a  friend  of  Otkell. 
Hallkell,  brother  of  Otkell. 
Hallbjorn,  the  White,  brother 

of  Otkell. 
Malcolm,  a  thrall  bought  by 

Giinnar  from  Otkell. 
RuNOLF,  son  of  Wolf  Aurpriest. 
Rannvieg,  mother  of  Gunnar. 
Skapti,  a  lawyer,  son  of  Thorod. 
Thorod,  a  lawyer. 
Thorgeir,  of  Lightwater. 
Hauskuld,  Priest  of  Whiteness, 

foster-son  of  Njal. 
Flosi,  son  of  Thord. 
Hall,  of  the  Side. 
Kari,  Solmund's  son. 
Starkad, 
Thorgeir, 
Stein, 

KOLBEIN, 

Egil, 

Thorstein,  nicknamed  Broad- 
paunch,  brother  of  Hall. 


Thorstein 


brothers  of  Flosi. 


■) 


sons  of  Hall. 


Egil, 

HiLDiGUNNA,  wife  of  Hauskuld, 
Priest  of  Whiteness. 

Snorri,  the  Priest. 

Ljot,  son  of  Hall. 

Glum,  son  of  Hilldir  the  Old. 

MoDOLF,  son  of  Kettle. 

Thorkel  Foulmouth. 

GuDML^D,  the  Powerful. 

Thorir,  son  of  Helgi. 

Hjallti,  son  of  Skeggi. 

Thorhall,  son  of  Asgrim,  a 
lawyer. 

Thorleif  Crow,       ] 

Thorgeir Craggeir,  [brothers. 

Thorgrim,  the  Big,    J 

KoL,  son  of  Thorstein  Broad- 
paunch. 

Eyjolf,  a  lawyer. 

Bjarni,  son  of  Broddhelgi. 

Hallbjorn,  the  Strong.  ] 


1.   OF  FIDDLE  MORD 

There  was  a  man  named  Mord  whose  surname  was  Fiddle; 
he  was  the  son  of  Sigvat  the  Red,  and  he  dwelt  at  the  "Vale" 
in  the  Rangriver vales.  He  was  a  mighty  chief,  and  a  great 
taker  up  of  suits,  and  so  great  a  lawyer  that  no  judgments  were 
thought  lawful  unless  fie  had  a  hand  in  them.  He  had  an  only 
daughter,  named  Unna.  She  was  a  fair,  courteous,  and  gifted 
woman,  and  that  was  thought  the  best  match  in  all  the  Rangriver- 
vales. 

Now  the  story  turns  westward  to  the  Broadfirth  dales,  where, 
at  Hauskuldstede,  in  Laxriverdale,  dwelt  a  man  named  Hauskuld, 
who  was  Dalakoll's  son,  and  his  mother's  name  was  Thorgerda. 
He  had  a  brother  named  Hrut,  who  dwelt  at  Hrutstede ;  he  was  of 
the  same  mother  as  Hauskuld,  but  his  father's  name  was  Heriolf. 
Hrut  was  handsome,  tall  and  strong,  well  skilled  in  arms,  and  mild 
of  temper ;  he  was  one  of  the  wisest  of  men  —  stern  towards  his 
foes,  but  a  good  counsellor  on  great  matters. 


124  GENERAL  LITERATURE  [Part  I. 


2.  HRUT  WOOS  UNNA 

It  happened  once  that  those  brothers,  Hauskuld  and  Hrut, 
rode  to  the  Althing,  and  there  was  much  people  at  it.  Then 
Hauskuld  said  to  Hrut,  "One  thing  I  wish,  brother,  and  that 
is,  that  thou  wouldst  better  thy  lot  and  woo  thyself  a  wife." 

Hrut  answered,  "  That  has  been  long  on  my  mind,  though 
there  always  seemed  to  be  two  sides  to  the  matter ;  but  now 
I  will  do  as  thou  wishest ;  whither  shall  we  turn  our  eyes  ?  '* 

Hauskuld  answered,  "  Here  now  are  many  chiefs  at  the  Thing, 
and  there  is  plenty  of  choice,  but  I  have  already  set  my  eyes  on 
a  spot  where  a  match  lies  made  to  thy  hand.  The  woman's  name 
is  Unna,  and  she  is  a  daughter  of  Fiddle  Mord,  one  of  the  wisest  of 
men.  He  is  here  at  the  Thing  and  his  daughter  too,  and  thou 
mayst  see  her  if  it  pleases  thee." 

Now  the  next  day,  when  men  were  going  to  the  High  Court, 
they  saw  some  well-dressed  women  standing  outside  the  booths 
of  the  men  from  the  Rangrivervales.  Then  Hauskuld  said  to  Hrut, 
"  Yonder  now  is  Unna,  of  whom  I  spoke ;  what  thinkest  thou  of 
her?" 

"  Well,"  answered  Hrut ;  "  but  yet  I  do  not  know  whether  we 
should  get  on  well  together." 

After  that  they  went  to  the  High  Court,  where  Fiddle  Mord  was 
laying  down  the  law  as  was  his  wont,  and  after  he  had  done  he 
went  home  to  his  booth. 

Then  Hauskuld  and  Hrut  rose,  and  went  to  Mord's  booths 
They  went  in  and  found  Mord  sitting  in  the  innermost  part  of  the 
booth,  and  they  bade  him  "  Good-day."  He  rose  to  meet  them, 
and  took  Hauskuld  by  the  hand  and  made  him  sit  down  by  his 
side,  and  Hrut  sat  next  to  Hauskuld.  So  after  they  had  talked 
much  of  this  and  that,  at  last  Hauskuld  said,  "I  have  a  bargain 
to  speak  to  thee  about ;  Hrut  wishes  to  become  thy  son-in-law,  and 
buy  thy  daughter,  and  I,  for  my  part,  will  not  be  sparing  in  the 
matter." 

Mord  answered,  "  I  know  that  thou  art  a  great  chief,  but  thy 
brother  is  unknown  to  me." 

"  He  is  a  better  man  than  I,"  answered  Hauskuld. 

"  Thou  wilt  need  to  lay  down  a  large  sum  with  him,  for  she  is 
heir  to  all  I  leave  behind  me,"  said  Mord. 

"  There  is  no  need,"  said  Hauskuld,  "  to  wait  long  before  thou 
hearest  what  I  give  my  word  he  shall  have.     He  shall  have  Kam- 


Chap.  VI.]  NJALS   SAGA  125 

11  ess  and  Hrutstede,  up  as  far  as  Thrandargil,  and  a  trading-ship 
beside,  now  on  her  voyage." 

Then  said  Hrut  to  Mord,  "  Bear  in  mind,  now,  husband,  that  my 
brother  has  praised  me  much  more  than  I  deserve  for  love's  sake ; 
but  if  after  what  thou  hast  heard,  thou  wilt  make  the  match,  I 
am  willing  to  let  thee  lay  down  the  terms  thyself." 

Mord  answered,  *'  I  have  thought  over  the  terms ;  she  shall 
have  sixty  hundreds  down,  and  this  sum  shall  be  increased  by  a 
third  more  in  thine  house,  but  if  ye  two  have  heirs,  ye  shall  go 
halves  in  the  goods." 

Then  said  Hrut,  "  I  agree  to  these  terms,  and  now  let  us  take 
witness."  After  that  they  stood  up  and  shook  hands,  and  Mord 
betrothed  his  daughter  Unna  to  Hrut,  and  the  bridal  feast  was  to 
be  at  Mord's  house,  half  a  month  after  Midsummer. 

Now  both  sides  ride  home  from  the  Thing,  and  Hauskuld  and 
Hrut  ride  westward  by  Hallbjorn's  beacon.  Then  Thiostolf,. 
the  son  of  Bjorn  Gullbera  of  Reykriverdale,  rode  to  meet  them, 
and  told  them  how  a  ship  had  come  out  from  Norway  to  the 
White  River,  and  how  aboard  of  her  was  Auzur,  Hrut's  father's 
brother,  and  he  wished  Hrut  to  come  to  him  as  soon  as  ever  he 
could.  When  Hrut  heard  this,  he  asked  Hauskuld  to  go  with  him 
to  the  ship,  so  Hauskuld  went  with  his  brother,  and  when  they 
reached  the  ship,  Hrut  gave  his  kinsman  Auzur  a  kind  and  hearty 
welcome.  Auzur  asked  them  into  his  booth  to  drink,  so  their 
horses  were  unsaddled,  and  they  went  in  and  drank,  and  while  they 
were  drinking,  Hrut  said  to  Auzur,  "Now  kinsman,  thou  must  ride 
west  with  me,  and  stay  with  me  this  winter." 

"  That  cannot  be,  kinsman,  for  I  have  to  tell  thee  the  death  of 
thy  brother  Eyvind,  and  he  has  left  thee  his  heir  at  the  Gula 
Thing,  and  now  thy  foes  will  seize  thy  heritage,  unless  thou  comest 
to  claim  it." 

"What's  to  be  done  now,  brother?"  said  Hrut  tcT  Hauskuld, 
"  for  this  seems  a  hard  matter,  coming  just  as  I  have  fixed  my  bridal 
day." 

"Thou  must  ride  south,"  said  Hauskuld, "  and  see  Mord,  and 
ask  him  to  change  the  bargain  which  ye  two  have  made,  and  to  let 
his  daughter  sit  for  thee  three  winters  as  thy  betrothed,  but  I  will 
ride  home  and  bring  down  thy  wares  to  the  ship." 

Then  said  Hrut,  "My  wish  is  that  thou  shouldest  take  meal 
and  timber,  and  whatever  else  thou  needest  out  of  the  lading.'^ 
So  Hrut  had  his  horses  brought  out,  and  he  rode  south,  while 
Hauskuld  rode  home  west.     Hrut  came  east  to  the  Rangrivervales 


126  GENERAL   LITERATURE  [Part  I. 

to  Mord,  and  had  a  good  welcome,  and  he  told  Mord  all  his  business 
and  asked  his  advice  what  he  should  do. 

"How  much  money  is  this  heritage,"  asked  Mord,  and  Hrut 
said  it  would  come  to  a  hundred  marks,  if  he  got  it  all. 

"Well,"  said  Mord,  "that  is  much  when  set  against  what  I 
shall  leave  behind  me,  and  thou  shalt  go  for  it,  if  thou  wilt." 

After  that  they  broke  their  bargain,  and  Unna  was  to  sit  waiting 
for  Hrut  three  years  as  his  betrothed.  Now  Hrut  rides  back  to 
the  ship,  and  stays  by  her  during  the  summer,  till  she  was  ready 
to  sail,  and  Hauskuld  brought  down  all  Hrut's  wares  and  money  to 
the  ship,  and  Hrut  placed  all  his  other  property  in  Hauskuld's 
hands  to  keep  for  him  while  he  was  away.  Then  Hauskuld  rode 
home  to  his  house,  and  a  little  While  after  they  got  a  fair  wind  and 
sail  away  to  sea.   .   .    . 

3.    HRUT  SAILS  TO  NORWAY  TO  CLAIM   HIS  HERITAGE 
4.   OF  HRUT'S  CRUISE 
5.   HRUT  RECOVERS  HIS  INHERITANCE 
6.  HRUT  RETURNS  TO  ICELAND 


As  soon  as  the  ship  was  made  fast  to  the  land,  Hrut  rode  west 
home,  but  Auzur  stayed  by  the  ship  to  unload  her,  and  lay  her 
up.  Hrut  rode  straight  to  Hauskuldstede,  and  Hauskuld  gave 
him  a  hearty  welcome,  and  Hrut  told  him  all  about  his  travels. 
After  that  they  send  men  east  across  the  rivers  to  tell  Fiddle  Mord 
to  make  ready  for  the  bridal  feast ;  but  the  two  brothers  rode  to 
the  ship,  and  on  the  way  Hauskuld  told  Hrut  how  his  money- 
matters  stood,  and  his  goods  had  gained  much  since  he  was  away. 
Then  Hrut  said,  "  The  reward  is  less  worth  than  it  ought  to  be,  but 
I  will  give  thee  as  much  meal  as  thou  needst  for  thy  household  next 
winter." 

Then  they  drew  the  ship  on  land  on  rollers,  and  made  her  snug 
in  her  shed,  but  all  the  wares  on  board  her  they  carried  away  into 


Chap.  VI.]  NJALS   SAGA  127 

the  Dales  westward.  Hrut  stayed  at  home  at  Hrutstede  till 
winter  was  six  weeks  off,  and  then  the  brothers  made  ready,  and 
Auzur  with  them,  to  ride  to  Hrut's  wedding.  Sixty  men  ride  with 
them,  and  they  rode  east  till  they  came  to  Rangriver  plains. 
There  they  found  a  crowd  of  guests,  and  the*  men  took  their  seats 
on  benches  down  the  length  of  the  hall,  but  the  women  were  seated 
on  the  cross-benches  on  the  dais,  and  the  bride  was  rather  down- 
cast. So  they  drank  out  the  feast  and  it  went  off  well.  Mord 
pays  down  his  daughter's  portion,  and  she  rides  west  with  her 
husband  and  his  train.  So  they  ride  till  they  reach  home.  Hrut 
gave  over  everything  into  her  hands  inside  the  house,  and  all  were 
pleased  at  that;  but  for  all  that  she  and  Hrut  did  not  pull  well 
together  as  man  and  wife,  and  so  things  went  on  till  spring,  and 
when  spring  came  Hrut  had  a  journey  to  make  to  the  Westfirths, 
to  get  in  the  money  for  which  he  had  sold  his  wares ;  but  before  he 
set  off  his  wife  says  to  him,  "Dost  thou  mean  to  be  back  before 
men  ride  to  the  Thing?" 

"Why  dost  thou  ask?"  said  Hrut. 

"I  will  ride  to  the  Thing,"  she  said,  *'to  meet  my  father." 

"So  it  shall  be,"  said  he,  "and  I  will  ride  to  the  Thing  along  with 
thee." 

"Well  and  good,"  she  says. 

After  that  Hrut  rode  from  home  west  to  the  Firths,  got  in  all 
his  money,  and  laid  it  out  anew,  and  rode  home  again.  When  he 
came  home  he  busked  him  to  ride  to  the  Thing,  and  made  all  his. 
neighbours  ride  with  him.  His  brother  Hauskuld  rode  among  the 
rest.  Then  Hrut  said  to  his  wife,  "  If  thou  hast  as  much  mind  now 
to  go  to  the  Thing  as  thou  saidst  a  while  ago,  busk  thyself  and  ride 
along  with  me." 

She  was  not  slow  in  getting  herself  ready,  and  then  they  all  rode 
to  the  Thing.  Unna  went  to  her  father's  booth,  and  he  gave  her  a 
hearty  welcome,  but  she  seemed  somewhat  heavy-hearted,  and 
when  he  saw  that  he  said  to  her,  "I  have  seen  thee  with  a  merrier 
face.     Hast  thou  anything  on  thy  mind  ?  " 

She  began  to  weep,  and  answered  nothing.  Then  he  said  to  her 
again.  "Why  didst  thou  ride  to  the  Thing,  if  thou  wilt  not  tell 
me  thy  secret  ?     Dost  thou  dislike  living  away  there  in  the  west  ?  " 

Then  she  answered  him,  "I  would  give  all  I  own  in  the  world 
that  I  had  never  gone  thither." 

"Well!"  said  Mord,  '^I'll  soon  get  to  the  bottom  of  this." 
Then  he  sends  men  to  fetch  Hauskuld  and  Hrut,  and  they  came 
straightway ;   and  when  they  came  in  to  see  Mord,  he  rose  up  to 


128  GENERAL   LITERATURE  [Part  I. 

meet  them  and  gave  them  a  hearty  welcome,  and  asked  them  to 
sit  down.  Then  they  talked  a  long  time  in  a  friendly  way,  and  at 
last  Mord  said  to  Hauskuld,  *' Why  does  my  daughter  think  so  ill 
of  life  in  the  west  yonder?" 

"Let  her  speak  out,"  said  Hrut,  "if  she  has  anything  to  lay  to 
my  charge." 

But  she  brought  no  charge  against  him.  Then  Hrut  made 
them  ask  his  neighbours  and  household  how  he  treated  her,  and 
all  bore  him  good  witness,  saying  that  she  did  just  as  she  pleased 
in  the  house. 

Then  Mord  said,  "Home  thou  shalt  go,  and  be  content  with  thy 
lot ;  for  all  the  witness  goes  better  for  him  than  for  thee." 

After  that  Hrut  rode  home  from  the  Thing,  and  his  wife  with  him, 
and  all  went  smoothly  between  them  that  summer;  but  when 
spring  came  it  was  the  old  story  over  again,  and  things  grew  worse 
and  worse  as  the  spring  went  on.  Hrut  had  again  a  journey  to 
make  west  to  the  Firths,  and  gave  out  that  he  would  not  ride  to 
the  Althing,  but  Unna  his  wife  said  little  about  it.  So  Hrut  went 
away  west  to  the  Firths. 

7.  UNNA  SEPARATES  FROM  HRUT 

Now  the  time  for  the  Thing  was  coming  on.  Unna  spoke  to 
Sigmund,  Auzur's  son,  and  asked  if  he  would  ride  to  the  Thing 
with  her ;  he  said  he  could  not  ride  if  his  kinsman  Hrut  set  his  face 
against  it. 

*^Well!"  says  she,  *'I  spoke  to  thee  because  I  have  better 
right  to  ask  this  from  thee  than  from  any  one  else." 

He  answered,  '^  I  will  make  a  bargain  with  thee :  thou  must 
promise  to  ride  back  west  with  me,  and  to  have  no  underhand 
dealings  against  Hrut  or  myself." 

So  she  promised  that,  and  then  they  rode  to  the  Thing.  Her 
father  Mord  was  at  the  Thing,  and  was  very  glad  to  see  her,  and 
asked  her  to  stay  in  his  booth  while  the  Thing  lasted,  and  she  did 
so. 


**Now,  tell  me  all  that  is  between  you  two,  and  don't  make  more 
of  the  matter  than  it  is  worth." 

"So  it  shall  be,"  she  answered,  and  sang  two  songs,  in  which 
she  revealed  the  cause  of  their  misunderstanding.   ... 

''Thou  didst  right  to  tell  me  all  this,"  said  Mord,  "and  now  I 


Chap.  VI.]  NJALS   SAGA  '  129 

will  give  thee  a  piece  of  advice,  which  will  stand  thee  in  good  stead, 
if  thou  canst  carry  it  out  to  the  letter.  First  of  all,  thou  must 
ride  home  from  the  Thing,  and  by  that  time  thy  husband  will  have 
come  back,  and  will  be  glad  to  see  thee ;  thou  must  be  blithe  and 
buxom  to  him,  and  he  will  think  a  good  change  has  come  over  thee, 
and  thou  must  show  no  signs  of  coldness  or  ill-temper,  but  when 
spring  comes  thou  must  sham  sickness,  and  take  to  thy  bed.  Hrut 
will  not  lose  time  in  guessing  what  thy  sickness  can  be,  nor  will 
he  scold  thee  at  all,  but  he  will  rather  beg  every  one  to  take  all  the 
care  they  can  of  thee.  After  that  he  will  set  off  west  to  the  Firths, 
and  Sigmund  with  him,  for  he  will  have  to  flit  all  his  goods  home 
from  the  Firths  west,  and  he  will  be  away  till  the  summer  is  far 
spent.  But  when  men  ride  to  the  Thing,  and  after  all  have  ridden 
from  the  Dales  that  mean  to  ride  thither ;  then  thou  must  rise  from 
thy  bed  and  summon  men  to  go  along  with  thee  to  the  Thing; 
and  when  thou  art  *all-boun,^  then  shalt  thou  go  to  thy  bed,  and 
the  men  with  thee  who  are  to  bear  thee  company,  and  thou  shalt 
take  witness  before  thy  husband's  bed,  and  declare  thyself  sepa- 
rated from  him  by  such  a  lawful  separation  as  may  hold  good 
according  to  the  judgment  of  the  Great  Thing,  and  the  laws  of  the 
land ;  and  at  the  man's  door  [the  main  door  of  the  house,]  thou 
shalt  take  the  same  witness.  After  that  ride  away,  and  ride  over 
Laxriverdale  Heath,  and  so  on  over  Holtbeacon  Heath ;  for  they 
will  look  for  thee  by  way  of  Hrutfirth.  And  so  ride  on  till  thou 
comest  to  me ;  then  I  will  see  after  the  matter.  But  into  his  hands 
thou  shalt  never  come  more." 

Now  she  rides  home  from  the  Thing,  and  Hrut  had  come  back 
before  her,  and  made  her  hearty  welcome.  She  answered  him 
kindly,  and  was  blithe  and  forbearing  towards  him.  So  they 
lived  happily  together  that  half-year ;  but  when  spring  came  she 
fell  sick,  and  kept  her  bed.  Hrut  set  off  west  to  the  Firths,  and 
bade  them  tend  her  well  before  he  went.  Now,  when  the  time  for 
the  Thing  comes,  she  busked  herself  to  ride  away,  and  did  in  every 
way  as  had  been  laid  down  for  her;  and  then  she  rides  away  to 
the  Thing.  The  country  folk  looked  for  her,  but  could  not  find 
her.  Mord  made  his  daughter  welcome,  and  asked  her  if  she  had 
followed  his  advice ;  and  she  says,  ''  I  have  not  broken  one  tittle 
of  it." 

Then  she  went  to  the  Hill  of  Laws,  and  declared  herself  separated 
from  Hrut;  and  men  thought  this  strange  news.  Unna  went 
home  with  her  father,  and  never  went  west  from  that  day 
forward. 


130  GENERAL    LITERATURE  [Part  I. 

8.  MORD  CLAIMS  HIS  GOODS  FROM   HRUT 

Hrut  came  home,  and  knit  his  brows  when  he  heard  his  wiic 
was  gone,  but  yet  kept  his  feehngs  well  in  hand,  and  stayed  at 
home  all  that  half-year,  and  spoke  to  no  one  on  the  matter.  Next 
summer  he  rode  to  the  Thing,  with  his  brother  Hauskuld,  and  they 
had  a  great  following.  But  when  he  came  to  the  Thing,  he  asked 
whether  Fiddle  Mord  were  at  the  Thing,  and  they  told  him  lie 
was;  and  all  thought  they  would  come  to  words  at  once  about 
their  matter,  but  it  was  not  so.  At  last,  one  day  when  the  brothers 
and  others  who  were  at  the  Thing  went  to  the  Hill  of  Laws,  Mord 
took  witness  and  declared  that  he  had  a  money-suit  against  Hrut 
for  his  daughter's  dower,  and  reckoned  the  amount  at  ninety 
hundreds  in  goods,  calling  on  Hrut  at  the  same  time  to  pay  and 
hand  it  over  to  him,  and  asking  for  a  fine  of  three  marks.  He  laid 
the  suit  in  the  Quarter  Court,  into  which  it  would  come  by  law, 
and  gave  lawful  notice,  so  that  all  who  stood  on  the  Hill  of  Laws 
might  hear. 

But  when  he  had  thus  spoken,  Hrut  said,  "  Thou  hast  undertaken 
this  suit,  which  belongs  to  thy -daughter,  rather  for  the  greed  of 
gain  and  love  of  strife  than  in  kindliness  and  manliness.  But  I 
shall  have  something  to  say  against  it ;  for  the  goods  which  belong 
to  me  are  not  yet  in  thy  hands.  Now,  what  I  have  to  say  is  this, 
and  I  say  it  out,  so  that  all  who  hear  me  on  this  hill  may  bear 
witness  :  I  challenge  thee  to  fight  on  the  island ;  there  on  one  side 
shall  be  laid  all  thy  daughter's  dower,  and  on  the  other  I  will  lay 
down  goods  worth  as  much,  and  whoever  wins  the  day  shall  have 
both  dower  and  goods ;  but  if  thou  wilt  not  fight  with  me,  then  thou 
shalt  give  up  all  claim  to  these  goods." 

Then  Mord  held  his  peace,  and  took  counsel  with  his  friends 
about  going  to  fight  on  the  island,  and  Jorund  the  priest  gave  him 
an  answer. 

"There  is  no  need  for  thee  to  come  to  ask  us  for  counsel  in  this 
matter,  for  thou  knowest  if  thou  fightest  with  Hrut  thou  wilt 
lose  both  life  and  goods.  He  has  a  good  cause,  and  is  besides 
mighty  in  himself  and  one  of  the  boldest  of  men." 

Then  Mord  spoke  out,  that  he  would  not  fight  with  Hrut,  and 
there  arose  a  great  shout  and  hooting  on  the  hill,  and  Mord  got  the 
greatest  shame  by  his  suit. 

9.  THORWALD  GETS  HALLGERDA  TO  WIFE 


Chap.  VI.]  NJALS   SAGA  131 

10.   HALLGERDA'S  WEDDING 

11.    HALLGERDA    INSTIGATES    THORWALD'S    SLAYING    BY 

THIOSTOLF 


12.   THIOSTOLF'S  FLIGHT 

******* 

13.  GLUM'S  WOOING  OF  HALLGERDA 

******* 

14.  WEDDING  OF  GLUM  AND  HALLGERDA 

*  *  *  *  *  *  * 

15.  THIOSTOLF  GOES  TO   GLUM'S  HOUSE 


17.    GLUM'S  SLAYING  BY  THIOSTOLF.      HRUT   KILLS 
THIOSTOLF 

*(*  •!•  -t*  JJC  JfC  TfC  5|C 

18.  FIDDLE  MORD'S  DEATH 

Now  it  must  be  told  how  Fiddle  Mord  took  a  sickness  and 
breathed  his  last;  and  that  was  thought  great  scathe.  His 
daughter  Unna  took  all  the  goods  he  left  behind  him.  She  was 
then  still  unmarried  the  second  time.  She  was  very  lavish,  and 
unthrifty  of  her  property;  so  that  her  goods  and  ready  money 
wasted  away,  and  at  last  she  had  scarce  anything  left  but  land  and 
stock. 

19.  GUNNAR  COMES  INTO  THE  STORY 

There  was  a  man  whose  name  was  Gunnar.  He  was  one  of 
Unna's  kinsmen,  and  his  mother's  name  was  Rannveig.  Gunnar's 
father  was  named  Hamond.  Gunnar,  Hamond's  son,  dwelt  at 
Lithend,  in  the  Fleetlithe.  He  was  a  tall  man  in  growth,  and  a 
strong  man  —  best  skilled  in  arms  of  all  men. 


132  GENERAL   LITERATURE  [Part  I. 

20.    OF  NJAL  AND   HIS  CHILDREN 

There  was  a  man  whose  name  was  Njal.  He  was  the  son  of 
Thorgeir  GeHing,  the  son  of  Thorolf.  Njal's  mother's  name  was 
Asgerda.  Njal  dwelt  at  Bergthorsknoll  in  the  land-isles ;  he  had 
another  homestead  on  Thorolfsfell.  Njal  was  wealthy  in  goods, 
and  handsome  of  face ;  no  beard  grew  on  his  chin.  He  was  so  great 
a  lawyer,  that  his  match  was  not  to  be  found.  Wise  too  he  was, 
and  foreknowing  and  foresighted.^  Of  good  counsel,  and  ready  to 
give  it,  and  all  that  he  advised  men  was  sure  to  be  the  best  for  them 
to  do.  Gentle  and  generous,  he  unravelled  every  man's  knotty 
points  who  came  to  see  him  about  them.  Bergthora  was  his 
wife's  name,  she  was  Skarphedinn's  daughter,  a  very  high-spirited, 
brave-hearted  woman,  but  somewhat  hard-tempered.  They  had 
six  children,  three  daughters  and  three  sons,  and  they  all  come 
afterwards  into  this  story. 


21.  UNNA  GOES  TO  SEE   GUNNAR 

Now  it  must  be  told  how  Unna  had  lost  all  her  ready  money. 
She  made  her  way  to  Lithend,  and  Gunnar  greeted  his  kinswoman 
well.  She  stayed  there  that  night,  and  the  next  morning  they  sat 
out  of  doors  and  talked.  The  end  of  their  talk  was,  that  she 
told  him  how  heavily  she  was  pressed  for  money. 

"This  is  a  bad  business,"  he  said. 

"  What  help  wilt  thou  give  me  out  of  my  distress  ?  "  she  asked. 

He  answered,  "  Take  as  much  money  as  thou  needest  from  what 
I  have  out  at  interest." 

"Nay,"  she  said,  "I  will  not  waste  thy  goods." 

"  What  then  dost  thou  wish  ?  " 

"I  wish  thee  to  get  back  my  goods  out  of  Hrut's  hands,"  she 
answered. 

"That,  methinks,  is  not  likely,"  said  he,  "when  thy  father  could 
not  get  them  back,  and  yet  he  was  a  great  lawyer,  but  I  know  little 
about  law." 

She  answered,  "Hrut  pushed  that  matter  through  rather  by 
boldness  than  by  law ;  besides,  my  father  was  old,  and  that  was 
why  men  thought  it  better  not  to  drive  things  to  the  uttermost. 
And  now  there  is  none  of  my  kinsmen  to  take  this  suit  up  if  thou 
hast  not  daring  enough." 

1  This  means  that  Njal  was  one  of  those  gifted  beings  who,  according  to 
the  firm  belief  of  that  age,  had  a  more  than  human  insight  into  things 
about  to  happen.    It  answers  very  nearly  to  the  Scottish  "  second  sight." 


Chap.  VI.]  NJALS  SAGA  133 

"I  have  courage  enough,"  he  replied,  "to  get  these  goods  back; 
but  I  do  not  know  how  to  take  the  suit  up." 

"Well!"  she  answered,  "go  and  see  Njal  of  Bergthorsknoll,  he 
will  know  how  to  give  thee  advice.  Besides,  he  is  a  great  friend 
of  thine." 

"  'Tis  like  enough  he  will  give  me  good  advice,  as  he  gives  it  to 
every  one  else,"  says  Gunnar. 

So  the  end  of  their  talk  was,  that  Gunnar  undertook  her  cause, 
and  gave  her  the  money  she  needed  for  her  housekeeping,  and 
after  that  she  went  home. 

Now  Gunnar  rides  to  see  Njal,  and  he  made  him  welcome,  and 
they  began  to  talk  at  once. 

Then  Gunnar  said, "  I  am  come  to  seek  a  bit  of  good  advice  from 
thee." 

Njal  replied,  "Many  of  my  friends  are  worthy  of  this,  but  still  I 
think  I  would  take  more  pains  for  none  than  for  thee." 

Gunnar  said,  "  I  wish  to  let  thee  know  that  I  have  undertaken  to 
get  Unna's  goods  back  from  Hrut." 

"A  very  hard  suit  to  undertake,"  said  Njal,  "and  one  very 
hazardous  how  it  will  go ;  but  still  I  will  get  it  up  for  thee  in  the  way 
I  think  likeliest  to  succeed  j  and  the  end  will  be  good  if  thou  break- 
est  none  of  the  rules  I  lay  down ;  if  thou  dost,  thy  life  is  in  danger." 

"Never  fear;  I  will  break  none  of  them,"  said  Gunnar. 

Then  Njal  held  his  peace  for  a  little  while,  and  after  that  he 
spoke  as  follows :  — 

22.  NJAL'S  ADVICE 

"I  have  thought  over  the  suit,  and  it  will  do  so.  Thou  shalt 
ride  from  home  with  two  men  at  thy  back.  Over  all  thou  shalt 
have  a  great  rough  cloak,  and  under  that,  a  russet  kirtle  of  cheap 
stuff,  and  under  all,  thy  good  clothes.  Thou  must  take  a  small 
axe  in  thy  hand,  and  each  of  you  must  have  two  horses,  one  fat, 
the  other  lean.  Thou  shalt  carry  hardware  and  smith's  work  with 
thee  hence,  and  ye  must  ride  off  early  to-morrow  morning,  and 
when  ye  are  come  across  Whitewater  westwards,  mind  and  slouch 
thy  hat  well  over  thy  brows.  Then  men  will  ask  who  is  this  tall 
man,  and  thy  mates  shall  say,  'Here  is  Huckster  Hedinn  the  Big, 
n  man  from  Eyjafirth,  who  is  going  about  with  smith's  work  for 
sale.'  This  Hedinn  is  ill-tempered  and  a  chatterer  —  a  fellow 
who  thinks  he  alone  knows  everything.  Very  often  he  snatches 
back  his  wares,  and  flies  at  men  if  everything  is  not  done  as  he 
wishes.     So  thou  shalt  ride  west  to  Borgarfirth  offering  all  sorts  of 


134  GENERAL  LITERATURE  [Part  I. 

wares  for  sale,  and  be  sure  often  to  cry  off  thy  bargains,  so  that  it 
will  be  noised  abroad  that  Huckster  Hedinn  is  the  worst  of  men  to 
deal  with,  and  that  no  lies  have  been  told  of  his  bad  behaviour. 
So  thou  shalt  ride  to  Northwaterdale,  and  to  Hrutfirth,  and  Lax- 
riverdale,  till  thou  comest  to  Hauskuldstede.  There  thou  must 
stay  a  night,  and  sit  in  the  lowest  place,  and  hang  thy  head  down. 
Hauskuld  will  tell  them  all  not  to  meddle  nor  make  with  Huckster 
^edinn,  saying  he  is  a  rude  unfriendly  fellow.  Next  morning 
thou  must  be  off  early  and  go  to  the  farm  nearest  Hrutstede. 
There  thou  must  offer  thy  goods  for  sale,  praising  up  all  that  is 
worst,  and  tinkering  up  the  faults.  The  master  of  the  house  will 
pry  about  and  find  out  the  faults.  Thou  must  snatch  the  wares 
away  from  him,  and  speak  ill  to  him.  He  will  say,  '  'twas  not  to 
be  hoped  that  thou  wouldst  behave  well  to  him,  when  thou  be- 
havest  ill  to  every  one  else.'  Then  thou  shalt  fly  at  him,  though  it 
is  not  thy  wont,  but  mind  and  spare  thy  strength,  that  thou 
mayest  not  be  found  out.  Then  a  man  will  be  sent  to  Hrutstede 
to  tell  Hrut  he  had  best  come  and  part  you.  He  will  come  at  once 
and  ask  thee  to  his  house,  and  thou  must  accept  his  offer.  Thou 
shalt  greet  Hrut  and  he  will  answer  well.  A  place  will  be  given 
thee  on  the  lower  bench  over  against  Hrut's  high  seat.  He  will 
ask  if  thou  art  from  the  North,  and  thou  shalt  answer  that  thou  art 
a  man  of  Eyjafirth.  He  will  go  on  to  ask  if  there  are  very  many 
famous  men  there.  *  Shabby  fellows  enough  and  to  spare,'  thou 
must  answer.  '  Dost  thou  know  Reykiardale  and  the  parts 
about?'  he  will  ask.  To  which  thou  must  answer,  'I  know  all 
Iceland  by  heart.' 

"'Are  there  any  stout  champions  left  in  Reykiardale?'  he  will 
ask.  'Thieves  and  scoundrels,'  thou  shalt  answer.  Then  Hrut 
will  smile  and  think  it  sport  to  listen.  You  two  will  go  on  to  talk 
of  the  men  in  the  Eastfirth  Quarter,  and  thou  must  always  find 
something  to  say  against  them.  At  last  your  talk  will  come  to 
Rangrivervale,  and  then  thou  must  say,  there  is  small  choice  of 
men  left  in  those  parts  since  Fiddle  Mord  died.  At  the  same  time 
sing  some  stave  to  please  Hrut,  for  I  know  thou  art  a  skald.  Hrut 
will  ask  what  makes  thee  say  there  is  never  a  man  to  come  in 
Mord's  place  ?  and  then  thou  must  answer,  that  he  was  so  wise  a 
man  and  so  good  a  taker  up  of  suits,  that  he  never  made  a  false  step 
in  upholding  his  leadership.  He  will  ask,  'Dost  thou  know  how 
matters  fared  between  me  and  him  ? ' 

"'I  know  all  about  it,'  thou  must  reply,  'he  took  thy  wife  from 
thee,  and  thou  hadst  not  a  word  to  say.' 


Chap.  VI.]  NJALS   SAGA  135 

"  Then  Hrut  will  ask,  '  Dost  thou  not  think  it  was  some  disgrace 
to  him  when  he  could  not  get  back  his  goods,  though  he  set  the 
suit  on  foot  ? ' 

"*I  can  answer  thee  that  well  enough,'  thou  must  say.  'Thou 
challengedst  him  to  single  combat;  but  he  was  old,  and  so  his 
friends  advised  him  not  to  fight  with  thee,  and  then  they  let  the 
suit  fall  to  the  ground.' 

"'True  enough,'  Hrut  will  say.  'I  said  so,  and  that  passed  for 
law  among  foolish  men ;  but  the  suit  might  have  been  taken  up 
again  at  another  Thing  if  he  had  the  heart.' 

"'I  know  all  that,'  thou  must  say. 

"  Then  he  will  ask,  '  Dost  thou  know  anything  about  law  ? ' 

"'Up  in  the  North  I  am  thought  to  know  something  about  it,' 
thou  shalt  say.  'But  still  I  should  like  thee  to  tell  me  how  this 
suit  should  be  taken  up.' 

" '  What  suit  dost  thou  mean  ? '  he  will  ask. 

"'A  suit,'  thou  must  answer,  'which  does  not  concern  me.  I 
want  to  know  how  a  man  must  set  to  work  who  wishes 
to  get  back  Unna's  dower.' 

"  Then  Hrut  will  say,  '  In  this  suit  I  must  be  summoned  so  that 
I  can  hear  the  summons,  or  I  must  be  summoned  here  in  my  lawful 
house.' 

"'Recite  the  summons,  then,'  thou  must  say,  'and  I  will  say  it 
after  thee.' 

"Then  Hrut  will  summon  himself;  and  mind  and  pay  great 
heed  to  every  word  he  says.  After  that  Hrut  will  bid  thee  repeat 
the  summons,  and  thou  must  do  so,  and  say  it  all  wrong,  so  that 
no  more  than  every  other  word  is  right. 

"Then  Hrut  will  smile  and  not  mistrust  thee,  but  say  that 
scarce  a  word  is  right.  Thou  must  throw  the  blame  on  thy  com- 
panions, and  say  they  put  thee  out,  and  then  thou  must  ask  him 
to  say  the  words  first,  word  by  word,  and  to  let  thee  say  the  words 
after  him.  He  will  give  thee  leave,  and  summon  himself  in  the 
suit,  and  thou  shalt  summon  after  him  there  and  then,  and  this 
time  say  every  word  right.  When  it  is  done,  ask  Hrut  if  that  were 
rightly  summoned,  and  he  will  answer,  'There  is  no  flaw  to  be 
found  in  it.'  Then  thou  shalt  say  in  a  loud  voice,  so  that  thy 
companions  may  hear,  'I  summon  thee  in  the  suit  which  Unna, 
Mord's  daughter,  has  made  over  to  me  with  her  plighted  hand.' 

"  But  when  men  are  sound  asleep,  you  shall  rise  and  take  your 
bridles  and  saddles,  and  tread  softly,  and  go  out  of  the  house, 
and  put  your  saddles  on  your  fat  horses  in  the  fields,  and  so  ride 


136  GENERAL  LITERATURE  [Part  I. 

off  on  them,  but  leave  the  others  behind  you.  You  must  ride  up 
into  the  hills  away  from  the  home  pastures  and  stay  there  three 
nights,  for  about  so  long  will  they  seek  you.  After  that  ride  home 
south,  riding  always  by  night  and  resting  by  day.  As  for  us,  we 
will  then  ride  this  summer  to  the  Thing,  and  help  thee  in  thy  suit." 
So  Gunnar  thanked  Njal,  and  first  of  all  rode  home. 

23.  HUCKSTER  HEDINN 

Gunnar  rode  from  home  two  nights  afterwards,  and  two  men 
with  him ;  they  rode  along  until  they  got  on  Bluewoodheath  and 
then  men  on  horseback  met  them  and  asked  who  that  tall  man 
might  be  of  whom  so  little  was  seen.  But  his  companions  said  it 
was  Huckster  Hedinn.  Then  the  others  said  a  worse  was  not  to 
be  looked  for  behind,  when  such  a  man  as  he  went  before.  Hedinn 
at  once  made  as  though  he  would  have  set  upon  them,  but  yet 
each  went  their  way.  So  Gunnar  went  on  doing  everything  as 
Njal  had  laid  it  down  for  him,  and  when  he  came  to  Hauskuldstede 
he  stayed  there  the  night,  and  thence  he  went  down  the  dale  till 
he  came  to  the  next  farm  to  Hrutstede.  There  he  offered  his  wares 
for  sale,  and  Hedinn  fell  at  once  upon  the  farmer.  This  was  told 
to  Hrut,  and  he  sent  for  Hedinn,  and  Hedinn  went  at  once  to  see 
Hrut,  and  had  a  good  welcome.  Hrut  seated  him  over  against 
himself,  and  their  talk  went  pretty  much  as  Njal  had  guessed. 

9|C  9|C  •)(  3|C  3|C  3|C  3^ 

So  they  went  on,  till  Hrut,  in  answer  told  him  how  the  suit 
must  be  taken  up,  and  recited  the  summons.  Hedinn  repeated 
it  all  wrong,  and  Hrut  burst  our  laughing,  and  had  no  mistrust. 
Then  he  said,  Hrut  must  summon  once  more,  and  Hrut  did  so. 
Then  Hedinn  repeated  the  summons  a  second  time,  and  this  time 
right,  and  called  his  companions  to  witness  how  he  summoned  Hrut 
in  a  suit  which  Unna,  Mord's  daughter,  had  made  over  to  him  with 
her  plighted  hand.  At  night  he  w^ent  to  sleep  like  other  men,  but 
as  soon  as  ever  Hrut  was  sound  asleep,  they  took  their  clothes  and 
arms,  and  went  out  and  came  to  their  horses,  and  rode  off  across 
the  river,  and  so  up  along  the  bank  by  Hiardarholt  till  the  dale 
broke  off  among  the  hills,  and  so  there  they  are  upon  the  fells 
between  Laxriverdale  and  Hawkdale,  having  got  to  a  spot  where 
no  one  could  find  them  unless  he  had  fallen  on  them  by  chance. 

Hauskuld  wakes  up  that  night  at  Hauskuldstede,  and  roused 
all  his  household.  "I  will  tell  you  my  dream,"  he  said.  "I 
thought  I  saw  a  great  bear  go  out  of  this  house,  and  I  knew  at  once 


Chap.  VI.]  NJALS  SAGA  137 

this  beast's  match  was  not  to  be  found ;  two  cubs  followed  him, 
wishing  well  to  the  bear,  and  they  all  made  for  Hrutstede  and  went 
into  the  house  there.  After  that  I  woke.  Now  I  wish  to  ask  if 
any  of  you  saw  aught  about  yon  tall  man." 

Then  one  man  answered  him,  "  I  saw  how  a  golden  fringe  and  a 
bit  of  scarlet  cloth  peeped  out  at  his  arm,  and  on  his  right  arm  he 
had  a  ring  of  gold." 

Hauskuld  said,  "This  beast  is  no  man's  fetch,  but  Gunnar's 
of  Lithend,  and  now  methinks  I  see  all  about  it.  Up  !  let  us  ride  to 
Hrutstede."  And  they  did  so.  Hrut  lay  in  his  locked  bed,  and 
asks  who  have  come  there  ?  Hauskuld  tells  who  he  is,  and  asked 
what  guests  might  be  there  in  the  house  ? 

"Only  Huckster  Hedinn  is  here,"  says  Hrut. 

"A  broader  man  across  the  back,  it  will  be,  I  fear,"  says  Haus- 
kuld, "I  guess  here  must  have  been  Gunnar  of  Lithend." 

"Then  there  has  been  a  pretty  trial  of  cunning,"  says  Hrut. 

"What  has  happened?"  says  Hauskuld. 

"  I  told  him  how  to  take  up  Unna's  suit,  and  I  summoned  myself 
and  he  summoned  after,  and  now  he  can  use  this  first  step  in  the 
suit,  and  it  is  right  in  law." 

"There  has,  indeed,  been  a  great  falling  off  of  wit  on  one  side," 
said  Hauskuld,  ''  and  Gunnar  cannot  have  planned  it  all  by  him- 
self ;  Njal  must  be  at  the  bottom  of  this  plot,  for  there  is  not  his 
match  for  wit  in  all  the  land." 

Now  they  look  for  Hedinn,  but  he  is  already  off  and  away; 
after  that  they  gathered  folk,  and  looked  for  them  three  days, 
but  could  not  find  them.  Gunnar  rode  south  from  the  fell  to 
Hawkdale  and  so  east  of  Skard,  and  north  to  Holtbeaconheath, 
and  so  on  until  he  got  home. 

24.  GUNNAR  AND  HRUT  STRIVE  AT  THE   THING 

Gunnar  rode  to  the  Althing  and  Hrut  and  Hauskuld  rode 
thither  too  with  a  very  great  company.  Gunnar  pursues  his  suit, 
and  began  by  calling  on  his  neighbours  to  bear  witness,  but  Hrut 
and  his  brother  had  it  in  their  minds  to  make  an  onslaught  on  him, 
but  they  mistrusted  their  strength. 

Gunnar  next  went  to  the  court  of  the  men  of  Broadfirth,  and 
bade  Hrut  listen  to  his  oath  and  declaration  of  the  cause  of 
the  suit,  and  to  all  the  proofs  which  he  was  about  to  bring 
forward.  After  that  he  took  his  oath,  and  declared  his  case. 
After  that  he  brought  forward  his  witnesses  of  the  summons,  along 


138  GENERAL  LITERATURE  [Part  I. 

with  his  witnesses  that  the  suit  had  been  handed  over  to  him. 
All  this  time  Njal  was  not  at  the  court.  Now  Gunnar  pursued 
his  suit  till  he  called  on  the  defendant  to  reply.  Then  Hrut 
took  witness,  and  said  the  suit  was  naught,  and  that  there  was  a  flaw 
in  the  pleading;  he  declared  that  it  had  broken  down  because 
Gunnar  had  failed  to  call  those  three  witnesses  which  ought  to 
have  been  brought  before  the  court.  The  first,  that  which  was 
taken  before  the  marriage-bed,  the  second,  before  the  man's 
door,  the  third,  at  the  Hill  of  Laws.  By  this  time  Njal  was  come 
to  the  court  and  said  the  suit  and  pleading  might  still  be  kept  alive 
if  they  chose  to  strive  in  that  way. 

"No,"  says  Gunnar,  "I  will  not  have  that;  I  will  do  the  same 
to  Hrut  as  he  did  to  Mord  my  kinsman;  or,  are  those  brothers 
Hrut  and  Hauskuld  so  near  that  they  may  hear  my  voice  ?  " 
"Hear  it  we  can,"  says  Hrut.  "What  dost  thou  wish?" 
Gunnar  said,  "Now  all  men  here  present  be  ear-witnesses,  that 
I  challenge  thee  tlrut  to  single  combat,  and  we  shall  fight  to-day 
on  the  holm,  which  is  here  in  Oxwater.  But  if  thou  wilt  not  fight 
with  me,  then  pay  up  all  the  money  this  very  day." 


After  that  Gunnar  went  away  from  the  court  with  all  his  fol- 
lowers. Hrut  and  Hauskuld  went  home  too,  and  the  suit  was 
never  pursued  nor  defended  from  that  day  forth.  Hrut  said,  as 
soon  as  he  got  inside  the  booth,  "  This  has  never  happened  to  me 
before,  that  any  man  has  offered  me  combat  and  I  have  shunned 
it." 

"Then  thou  must  mean  to  fight,"  says  Hauskuld,  "but  that 
shall  not  be  if  I  have  my  way ;  for  thou  comest  no  nearer  to  Gunnar 
than  Mord  would  have  come  to  thee,  and  we  had  better  both  of 
us  pay  up  the  money  to  Gunnar." 

After  that  the  brothers  asked  the  householders  of  their  own 
country  what  they  would  lay  down,  and  they  one  and  all  said  they 
would  lay  down  as  much  as  Hrut  wished. 

"  Let  us  go  then,"  says  Hauskuld,  "  to  Gunnar's  booth,  and  pay 
down  the  money  out  of  hand."  That  was  told  to  Gunnar,  and  he 
went  out  into  the  doorway  of  the  booth,  and  Hauskuld  said, 
"Now  it  is  thine  to  take  the  money." 

Gunnar  said,  "Pay  it  down,  then,  for  I  am  ready  to  take  it." 

So  they  paid  down  the  money  truly  out  of  hand,  and  then 
Hauskuld  said,  "Enjoy  it  now,  as  thou  hast  gotten  it." 


Chap.  VI.]  NJALS  SAGA  139 

25.  UNNA'S  SECOND  WEDDING  TO  VALGARD 
******* 

29.  GUNNAR  GOES  ABROAD 

******* 

32.  GUNNAR  COMES  OUT  TO  ICELAND 

33.  GUNNAR'S  WOOING  OF  HALLGERDA 

34.  MARRIAGE  OF  GUNNAR  AND  HALLGERDA 

35.  THE  VISIT  TO  BERGTHORSKNOLL,  THE  HOME  OF  NJAL 
HALLGERDA  QUARRELS  WITH  BERGTHORA 


36.  KOL,  THE  GRIEVE  OF  HALLGERDA,  AT  HER  INSTIGATION 
SLAYS  SWART,  THE  HOUSE-CARLE  OF  NJAL.  GUNNAR 
MAKES  ATONEMENT  TO  NJAL.  BERGTHORA  MEDITATES 
REVENGE 


37.  KOL  IS  SLAIN  BY  ATLI  BY  THE  DIRECTION  OF 
BERGTHORA.  NJAL  RETURNS  THE  ATONEMENT  TO  GUN- 
NAR 


38.  HALLGERDA  INSTIGATES  THE  KILLING  OF  ATLI  THE 
THRALL  BY  BRYNJOLF.  GUNNAR  AGAIN  MAKES  ATONE- 
MENT TO  NJAL 


39.  BERGTHORA  CAUSES  THE  SLAYING  OF  BRYNJOLF  THE 

UNRULY 


140  GENERAL  LITERATURE  [Part  I. 

40.    GUNNAR  AND  NJAL  MAKE  PEACE  ABOUT  BRYNJOLF'S 

SLAYING 


41.  HALLGERDA  PLOTS  THE  DEATH  OF  THORD  BY  SIGMUND 

42.  THE  SLAYING  OF  THORD  FREEDMANSON 

******* 


43.  NJAL  AND  GUNNAR  MAKE  PEACE  FOR  THE  SLAYING 

OF  THORD 

But  when  the  messenger  came  to  the  Thing  to  tell  Gunnar 
of  the  slaying,  then  Gunnar  said,  *'This  has  happened  ill,  and 
no  tidings  could  come  to  my  ears  which  I  should  think  worse; 
but  yet  we  will  now  go  at  once  and  see  Njal.  I  still  hope  he 
may  take  it  well,  though  he  be  sorely  tried." 

So  they  went  to  see  Njal,  and  called  him  to  come  out  and  talk 
to  them.  He  went  out  at  once  to  meet  Gunnar,  and  they  talked, 
nor  were  there  any  more  men  by  at  first  than  Kolskegg. 

"Hard  tidings  have  I  to  tell  thee,"  says  Gunnar;  "the  slaying 
of  Thord  Freedmanson,  and  I  wish  to  offer  thee  self-doom  for  the 
slaying." 

Njal  held  his  peace  some  while,  and  then  said,  *'That  is  well 
offered,  and  I  will  take  it ;  but  yet  it  is  to  be  looked  for  that  I  shall 
have  blame  from  my  wife  or  from  my  sons  for  that,  for  it  will 
mislike  them  much ;  but  still  I  will  run  the  risk,  for  I  know  that 
I  have  to  deal  with  a  good  man  and  true ;  nor  do  I  wish  that  any 
breach  should  arise  in  our  friendship  on  my  part." 

"Wilt  thou  let  thy  sons  be  by,  pray?"  says  Gunnar. 

"I  will  not,"  says  Njal,  "for  they  will  not  break  the  peace  which 
I  make,  but  if  they  stand  by  while  we  make  it  they  will  not  pull  well 
together  with  us.'' 

"So  it  shall  be,"  says  Gunnar.     "See  thou  to  it  alone." 

Then  they  shook  one  another  by  the  hand,  and  made  peace  well 
and  quickly. 

Then  Njal  said,  ''The  award  that  I  make  is  two  hundred  in 
silver,  and  that  thou  wilt  think  much." 

"  I  do  not  think  it  too  much,"  says  Gunnar,  and  went  home  to 
his  booth. 


Chap.  VI.]  NJALS  SAGA  141 

Njal's  sons  came  home,  and  Skarphedinn  asked  whence  that 
great  sum  of  money  came,  which  his  father  held  in  his  hand. 

Njal  said,  "  I  tell  you  of  your  foster-father's  Thord's  slaying, 
and  we  two,  Gunnar  and  I,  have  now  made  peace  in  the  matter, 
and  he  has  paid  an  atonement  for  him  as  for  two  men." 

''Who  slew  him?"  says  Skarphedinn. 

**Sigmund  and  Skiolld,  but  Thrain  was  standing  near  too," 
says  Njal. 

*'  They  thought  they  had  need  of  much  strength,"  says  Skarp- 
hedinn. 


"  Yes  !  when  shall  the  day  come  when  we  shall  Hft  our  hands?" 

"  That  will  not  be  long  off,"  says  Njal,  "and  then  thou  shalt  not 
be  baulked;  but  still,  methinks,  I  set  great  store  on  your  not 
breaking  this  peace  that  I  have  made." 

''Then  we  will  not  break  it,"  says  Skarphedinn,  "but  if  any- 
thing arises  between  us,  then  we  will  bear  in  mind  the  old  feud." 

"  Then  I  will  ask  you  to  spare  no  one,"  says  Njal. 

44.  SIGMUND  MOCKS  NJAL  AND  HIS  SONS 


45.  THE  SLAYING  OF  SIGMUND  AND  SKIOLLD  BY  THE  SONS 
OF  NJAL,  AND  THE  ATONEMENT 


46.  OF  GIZUR  THE  WHITE  AND  GEIR  THE  PRIEST 
******* 


47.  OF  OTKELL  IN  KIRKBY.  HOW  HE  REFUSES  TO  SELL 
HAY  AND  MEAT  TO  GUNNAR  IN  A  TIME  OF  GREAT 
SCARCITY.    GUNNAR  BUYS  MALCOLM,  OTKELL'S  THRALL 


48.  HOW     HALLGERDA     MAKES     MALCOLM     STEAL     FROM 

KIRKBY 


142  GENERAL   LITERATURE  [Part  I. 

49.  GUNNAR  DISCOVERS  THE  THEFT  AND  OFFERS  ATONE- 
MENT TO  OTKELL  WHO  REFUSES  IT  THROUGH 
SKAMKELL'S  EVIL  COUNSEL 


50.  OF  SKAMKELL'S  LYING.    OTKELL  CAUSES  GUNNAR  TO 
BE   SUMMONED 


54.  THE  FIGHT    AT   RANGRIVER.    GUNNAR    KILLS    OTKELL 
AND  KOLSKEGG  KILLS  HALLKELL 


55.  NJAL'S  ADVICE  TO  GUNNAR 

Now  those  tidings  are  heard  far  and  wide,  and  many  said  that 
they  thought  they  had  not  happened  before  it  was  Hkely.  Gunnar 
rode  to  Bergthorsknoll  and  told  Njal  of  these  deeds. 

Njal  said,  "  Thou  hast  done  great  things,  but  thou  hast  been 
sorely  tried." 

"How  will  it  now  go  henceforth?"  says  Gunnar. 

"  Wilt  thou  that  I  tell  thee  what  hath  not  yet  come  to  pass  ? " 
asks  Njal.  "  Thou  wilt  ride  to  the  Thing,  and  thou  wilt  abide  by 
my  counsel  and  get  the  greatest  honour  from  this  matter.  This 
will  be  the  beginning  of  thy  manslayings." 

"  But  give  me  some  cunning  counsel,"  says  Gunnar. 

"  I  will  do  that,"  says  Njal,  "  never  slay  more  than  one  man  in 
the  same  stock,  and  never  break  the  peace  which  good  men  and 
true  make  between  thee  and  others,  and  least  of  all  in  such  a  matter 
as  this." 

Gunnar  said,  "  I  should  have  thought  there  was  more  risk  of  that 
with  others  than  with  me." 

"  Like  enough,"  says  Njal,  "  but  still  thou  shalt  so  think  of  thy 
quarrels,  that  if  that  should  come  to  pass  of  which  I  have  warned 
thee,  then  thou  wilt  have  but  a  little  while  to  live ;  but  otherwise, 
thou  wilt  come  to  be  an  old  man." 

Gunnar  said,  "  Dost  thou  know  what  will  be  thine  own  death  ?  " 

"  I  know  it,"  says  Njal. 

"V^That?"  asks  Gunnar. 

"  That,"  says  Njal,  "  which  all  would  be  the  last  to  think." 

After  that  Gunnar  rode  home. 


Chap.  VI.]  NJALS   SAGA  143 

A  man  was  sent  to  Gizur  the  White  and  Geir  the  Priest,  for  they 
had  the  blood-feud  after  Otkell.  Then  they  had  a  meeting,  and 
had  a  talk  about  what  was  to  be  done ;  and  they  were  of  one  mind 
that  the  quarrel  should  be  followed  up  at  law.  Then  some  one  was 
sought  who  would  take  the  suit  up,  but  no  one  was  ready  to  do 
that. 

''  It  seems  to  me,"  says  Gizur,  "  that  now  there  are  only  two 
courses,  that  one  of  us  two  undertakes  the  suit,  and  then  we  shall 
have  to  draw  lots  who  it  shall  be,  or  else  the  man  will  be  unatoned. 
We  may  make  up  our  minds,  too,  that  this  will  be  a  heavy  suit  to 
touch  ;  Gunnar  has  many  kinsmen  and  is  much  beloved ;  but  that 
one  of  us  who  does  not  draw  the  lot,  shall  ride  to  the  Thing  and 
never  leave  it  until  the  suit  comes  to  an  end." 

After  that  they  drew  lots,  and  Geir  the  Priest  drew  the  lot  to  take 
up  the  suit. 

A  little  after,  they  rode  from  the  west  over  the  river,  and  came 
to  the  spot  where  the  meeting  had  been  by  Rangriver,  and  dug  up 
the  bodies,  and  took  witness  to  the  wounds.  After  that  they  gave 
lawful  notice  and  summoned  nine  neighbours  to  bear  witness  in 
the  suit. 

They  were  told  that  Gunnar  was  at  home  with  about  thirty 
men ;  then  Geir  the  Priest  asked  whether  Gizur  would  ride  against 
him  with  one  hundred  men. 

"  I  will  not  do  that,"  says  he,  "  though  the  balance  of  force  is 
great  on  our  side." 

After  that  they  rode  back  home.  The  news  that  the  suit  was 
set  on  foot  was  spread  all  over  the  country,  and  the  saying  ran 
that  the  Thing  would  be  very  noisy  and  stormy. 

56.  GUNNAR  AND  GEIR  THE  PRIEST  STRIVE  AT  THE  THING 

There  was  a  man  named  Skapti.  He  was  the  son  of  Thorod. 
That  father  and  son  were  great  chiefs,  and  very  well  skilled  in 
law.  Thorod  was  thought  to  be  rather  crafty  and  guileful.  They 
stood  by  Gizur  the  White  in  every  quarrel. 

As  for  the  Lithemen  and  the  dwellers  by  Rangriver,  they  came 
in  a  great  body  to  the  Thing.  Gunnar  was  so  beloved  that  all 
said  with  one  voice  that  they  would  back  him. 

Now  they  all  come  to  the  Thing  and  fit  up  their  booths.  In 
company  with  Gizur  the  White  were  these  chiefs  :  Skapti,  Thorod's 
son,  Asgrim,  EUidagrim's  son,  Oddi  of  Kidberg,  and  Halldor 
Ornolf's  son. 


144  GENERAL   LITERATURE  [Part  I. 

Now  one  day  men  went  to  the  Hill  of  Laws,  and  then  Geir  the 
Priest  stood  up  and  gave  notice  that  he  had  a  suit  of  manslaughter 
against  Gunnar  for  the  slaying  of  Otkell.  Another  suit  of  man- 
slaughter he  brought  against  Gunnar  for  the  slaying  of  Hallbjorn 
the  White ;  then,  too,  he  went  on  in  the  same  way  as  to  the  slaying 
of  Audulf,  and  so,  too,  as  to  the  slaying  of  Skamkell.  Then,  too, 
he  laid  a  suit  of  manslaughter  against  Kolskegg  for  the  slaying  of 
Hallkell. 

And  when  he  had  given  due  notice  of  all  his  suits  of  manslaughter 
it  was  said  that  he  spoke  well.  He  asked,  too,  in  what  Quarter 
Court  the  suits  lay,  and  in  what  house  in  the  district  the  defendants 
dwelt.  After  that  men  went  away  from  the  Hill  of  Laws,  and  so 
the  Thing  goes  on  till  the  day  when  the  courts  were  to  be  set  to 
try  suits.  Then  either  side  gathered  their  men  together  in  great 
strength. 

Geir  the  Priest  and  Gizur  the  White  stood  at  the  court  of  the 
men  of  Rangriver  looking  north,  and  Gunnar  and  Njal  stood  look- 
ing south  towards  the  court. 

Geir  the  Priest  bade  Gunnar  to  listen  to  his  oath,  and  then  he 
took  the  oath,  and  afterwards  declared  his  suit. 

Then  he  let  men  bear  witness  of  the  notice  given  by  the  suit ; 
then  he  called  upon  the  neighbours  who  were  to  form  the  inquest  to 
take  their  seats;  then  he  called  on  Gunnar  to  challenge  the  in- 
quest; and  then  he  called  on  the  inquest  to  utter  their  finding. 
Then  the  neighbours  who  were  summoned  on  the  inquest  went  to 
the  court  and  took  witness,  and  said  that  there  was  a  bar  to  their 
finding  in  the  suit  as  to  Audulf  s  slaying,  because  the  next  of  kin 
who  ought  to  follow  it  up  was  in  Norway,  and  so  they  had  nothing 
to  do  with  that  suit. 

After  that  they  uttered  their  finding  in  the  suit  as  to  Otkell,. 
and  brought  in  Gunnar  as  truly  guilty  of  killing  him. 

Then  Geir  the  Priest  called  on  Gunnar  for  his  defence,  and  took 
witness  of  all  the  steps  in  the  suit  which  had  been  proved. 

Then  Gunnar,  in  his  turn,  called  on  Geir  the  Priest  to  listen  to 
his  oath,  and  to  the  defence  which  he  was  about  to  bring  forward  in 
the  suit.  Then  he  took  the  oath  and  said,  "  This  defence  I  make 
to  this  suit,  that  I  took  witness  and  outlawed  Otkell  before  my 
neighbours  for  that  bloody  wound  which  I  got  when  Otkell  gave 
me  a  hurt  with  his  spur ;  but  thee,  Geir  the  Priest,  I  forbid  by  a 
lawful  protest  made  before  a  priest,  to  pursue  this  suit,  and  so, 
too,  I  forbid  the  judges  to  hear  it ;  and  with  this  I  make  all  the  steps 
hitherto  taken  in  this  suit  void  and  of  none-effect.     I  forbid  thee 


Chap.  VI.]  NJALS   SAGA  145 

by  a  lawful  protest,  a  full,  fair,  and  binding  protest,  as  I  have  a 
right  to  forbid  thee  by  the  common  custom  of  the  Thing  and  by 
the  law  of  the  land. 

"  Besides,  I  will  tell  thee  something  else  which  I  mean  to  do,^' 
says  Gunnar. 

"What!"  says  Geir,  "wilt  thou  challenge  me  to  the  island  as 
thou  art  wont,  and  not  bear  the  law  ?  " 

"  Not  that,"  says  Gunnar ;  "I  shall  summon  thee  at  the  Hill  of 
Laws  for  that  thou  calledst  those  men  on  the  inquest  who  had  no 
right  to  deal  with  Audulf's  slaying,  and  I  will  declare  thee  for  that 
guilty  of  outlawry." 

Then  Njal  said,  "  Things  must  not  take  this  turn,  for  the  only 
end  of  it  will  be  that  this  strife  will  be  carried  to  the  uttermost. 
Each  of  you,  as  it  seems  to  me,  has  much  on  his  side.  There  are 
some  of  these  manslaughters,  Gunnar,  about  which  thou  canst 
say  nothing  to  hinder  the  court  from  finding  thee  guilty ;  but  thou 
hast  set  on  foot  a  suit  against  Geir,  in  which  he,  too,  must  be  found 
guilty.  Thou  too,  Geir  the  Priest,  shalt  know  that  this  suit  of 
outlawry  which  hangs  over  thee  shall  not  fall  to  the  ground  if 
thou  wilt  not  listen  to  my  words." 

Thorod  the  Priest  said,  "  It  seems  to  us  as  though  the  most 
peaceful  way  would  be  that  a  settlement  and  atonement  were  come 
to  in  the  suit.     But  why  sayest  thou  so  little,  Gizur  the  White?" 

"  It  seems  to  me,"  says  Gizur,  "  as  though  we  shall  need  to  have 
strong  props  for  our  suit ;  we  may  see,  too,  that  Gunnar's  friends 
stand  near  him,  and  so  the  best  turn  for  us  that  things  can  take 
will  be  that  good  men  and  true  should  utter  an  award  on  the  suit, 
if  Gunnar  so  wills  it." 

"I have  ever  been  willing  to  make  matters  up,"  says  Gunnar; 
"  and  besides,  ye  have  much  wrong  to  follow  up,  but  still  I  think 
I  was  hard  driven  to  do  as  I  did." 

And  now  the  end  of  those  suits  was,  by  the  counsel  .of  the  wisest 
men,  that  all  the  suits  were  put  to  arbitration ;  six  men  were  to 
make  this  award,  and  it  was  uttered  there  and  then  at  the  Thing. 

The  award  was  that  Skamkell  should  be  unatoned.  The  blood 
money  for  Otkell's  death  was  to  be  set  off  against  the  hurt  Gunnar 
got  from  the  spur ;  and  as  for  the  rest  of  the  manslaughters,  they 
were  paid  for  after  the  worth  of  the  men,  and  Gunnar's  kinsmen 
gave  money  so  that  all  the  fines  might  be  paid  up  at  the  Thing. 

Then  Geir  the  Priest  and  Gizur  the  White  went  up  and  gave 
Gunnar  pledges  that  they  would  keep  the  peace  in  good  faith. 

Gunnar  rode  home  from  the  Thing,  and  thanked  men  for  their 


146  GENERAL   LITERATURE  [Part  I. 

help,  and  gave  gifts  to  many,  and  got  the  greatest  honour  from 
the  suit. 

Now  Gunnar  sits  at  home  in  his  honour. 


76.  GUNNAR'S  SLAYING 

******* 

78.  GUNNAR  OF  LITHEND  AVENGED 

4e  *  *  *  *  *  * 

82.  NJAL'S  SONS  SAIL  ABROAD 
******* 

89.  NJAL'S  SONS  AND  KARI  COME  OUT  TO  ICELAND 


90.  THE  QUARREL  OF  NJAL'S  SONS  WITH  THRAIN  SIGFUS' 

SON 


91.. THRAIN  SIGFUS'  SON  SLAIN  BY  SKARPHEDINN 

101.   OF  THORGEIR  OF  LIGHT  WATER 

There  was  a  man  named  Thorgeir  who  dwelt  at  Lightwater^  I 
he  was  the  son  of  Tjorfi  the  son  of  Thorkel  the  Long,  the  son  of 
Kettle  Longneck.  His  mother's  name  was  Thoruna,  and  she  was 
the  daughter,  of  Thorstein,  the  son  of  Sigmund,  the  son  of  Bard  of 
the  Nip.  Gudrida  was  the  name  of  his  wife ;  she  was  a  daughter 
of  Thorkel  the  Black  of  Hleidrargarth.  His  brother  was  Worm 
Wallet-back,  the  father  of  Hlenni  the  Old  of  Saurby. 

The  Christian  men  set  up  their  booths,  and  Gizur  the  White 
and  Hjallti  were  in  the  booths  of  the  men  from  Mossfell.  The 
day  after  both  sides  went  to  the  Hill  of  Laws,  and  each,  the  Chris- 
tian men  as  well  as  the  heathen,  took  witness,  and  declared  them- 
selves out  of  the  other's  laws,  and  then  there  was  such  an  uproar  on 
Hill  of  Laws  that  no  man  could  hear  the  other's  voice. 

After  that  men  went  away,  and  all  thought  things  looked  like  the 


I 


AP.  VI.]  NJALS   SAGA  147 


greatest  entanglement.  The  Christian  men  chose  as  their  Speaker, 
Hall  of  the  Side,  but  Hall  went  to  Thorgeir,  the  priest  of  Light- 
water,  who  was  the  old  Speaker  of  the  law,  and  gave  him  three 
marks  of  silver  ^  to  utter  what  the  law  should  be,  but  still  that  was 
most  hazardous  counsel,  since  he  was  an  heathen. 

Thorgeir  lay  all  that  day  on  the  ground,  and  spread  a  cloak 
over  his  head,  so  that  no  man  spoke  with  him ;  but  the  day  after 
men  went  to  the  Hill  of  Laws,  and  then  Thorgeir  bade  them  be 
silent  and  listen,  and  spoke  thus  :  "It  seems  to  me  as  though  our 
matters  were  come  to  a  deadlock,  if  we  are  not  all  to  have  one  and 
the  same  law ;  for  if  there  be  a  sundering  of  the  laws,  then  there  will 
be  a  sundering  of  the  peace,  and  we  shall  never  be  able  to  live  in 
the  land.  Now,  I  will  ask  both  Christian  men  and  heathen  whether 
they  will  hold  to  those  laws  which  I  utter?'' 

They  all  said  they  would. 

He  said  he  wished  to  take  an  oath  of  them,  and  pledges  that 
they  would  hold  to  them,  and  they  all  said  "yea"  to  that,  and  so 
he  took  pledges  from  them. 

"  This  is  the  beginning  of  our  laws,"  he  said,"  that  all  men  shall 
be  Christian  here  in  the  land,  and  believe  in  one  God,  the  Father, 
the  Son,  and  the  Holy  Ghost,  but  leave  off  all  idol-worship,  not 
expose  children  to  perish,  and  not  eat  horseflesh.  It  shall  be  out- 
lawry if  such  things  are  proved  openly  against  any  man;  but  if 
these  things  are  done  by  stealth,  then  it  shall  be  blameless." 

But  all  this  heathendom  was  all  done  away  with  within  a  few 
years'  space,  so  that  those  things  were  not  allowed  to  be  done  either 
by  stealth  or  openly. 

Thorgeir  then  uttered  the  law  as  to  keeping  the  Lord's  day 
and  fast  days,  Yuletide  and  Easter,  and  all  the  greatest  highdays 
and  holidays. 

The  heathen  men  thought  they  had  been  greatly  cheated; 
but  still  the  true  faith  was  brought  into  the  law,  and  so  all  men 
became  Christian  here  in  the  land. 

After  that  men  fare  home  from  the  Thing. 

102.  THE  FIFTH  COURT 

Njal  sought  to  get  a  priesthood  and  leadership  for  Hauskuld 
[his  foster-son],  but  no  one  was  willing  to  sell  his  priesthood,  and 
now  the  summer  passes  away  till  the  Althing. 

1  This  was  no  bribe,  but  his  lawful  fee. 


148  GENERAL   LITERATURE  [Part  I. 

There  were  great  quarrels  at  the  Thing  that  summer,  and  many  a 
man  then  did  as  was  their  wont,  in  faring  to  see  Njal ;  but  he  gave 
such  counsel  in  men's  lawsuits  as  was  not  thought  at  all  likely, 
so  that  both  the  pleadings  and  the  defence  came  to  naught,  and 
out  of  that  great  strife  arose,  when  the  lawsuits  could  not  be 
brought  to  an  end,  and  men  rode  home  from  the  Thing  unatoned. 

Now  things  go  on  till  another  Thing  comes.  Njal  rode  to  the 
Thing,  and  at  first  all  is  quiet  until  Njal  says  that  it  is  high  time 
for  men  to  give  notice  of  their  suits. 

Then  many  said  that  they  thought  that  came  to  little,  when  no 
man  could  get  his  suit  settled,  even  though  the  witnesses  were 
summoned  to  the  Althing,  "and  so,"  say  they,  "we  would  rather 
seek  our  rights  with  point  and  edge." 

"So  it  must  not  be,"  says  Njal,  "for  it  will  never  do  to  have  no 
law  in  the  land.  But  yet  ye  have  much  to  say  on  your  side  in 
this  matter,  and  it  behoves  us  who  know  the  law,  and  who  are 
bound  to  guide  the  law,  to  set  men  at  one  again,  and  to  ensure 
peace.  'Twere  good  council,  then,  methinks,  that  we  call  to- 
gether all  the  chiefs  and  talk  the  matter  over." 

Then  they  go  to  the  Court  of  Laws,  and  Njal  spoke  and  said, 
''Thee,  Skapti,  Thorod's  son  and  you  other  chiefs,  I  call  on,  and 
say,  that  methinks  our  lawsuits  have  come  into  a  deadlock,  if  we 
have  to  follow  up  our  suits  in  the  Quarter  Courts,  and  they  get  so 
entangled  that  they  can  neither  be  pleaded  nor  ended.  Methinks, 
it  were  wiser  if  we  had  a  Fifth  Court,  and  there  pleaded  those 
suits  which  cannot  be  brought  to  an  end  in  the  Quarter  Courts." 

"How,"  said  Skapti,  "wilt  thou  name  a  Fifth  Court,  when  the 
Quarter  Court  is  named  for  the  old  priesthoods,  three  twelves  in 
each  quarter?" 

"I  can  see  help  for  that,"  says  Njal,  "by  setting  up  new  priest- 
hoods, and  filling  them  with  the  men  who  are  best  fitted  in  each 
Quarter,  and  then  let  those  men  who  are  willing  to  agree  to  it, 
declare  themselves  ready  to  join  the  new  priest's  Thing." 

"Well,"  says  Skapti,  "we  will  take  this  choice;  but  what 
weighty  suits  shall  come  before  the  court?" 

"These  matters  shall  come  before  it,"  says  Njal,  —  "all  matters 
of  contempt  of  the  Thing,  such  as  if  men  bear  false  witness,  or  utter 
a  false  finding;  hither,  too,  shall  come  all  those  suits  in  which 
the  Judges  are  divided  in  opinion  in  the  Quarter  Court ;  then  they 
shall  be  summoned  to  the  Fifth  Court;  so,  too,  if  men  offer 
bribes,  or  take  them,  for  their  help  in  suits.  In  this  court  all  the 
oaths  shall  be  of  the  strongest  kind,  and  two  men  shall  follow  every 


Chap.  VI.]  NJALS  SAGA  149 

oath,  who  shall  support  on  their  words  of  honour  what  the  others 
swear.  So  it  shall  be  also,  if  the  pleadings  on  one  side  are  right 
in  form,  and  the  other  wrong,  that  the  judgment  shall  be  given 
for  those  that  are  right  in  form.  Every  suit  in  this  court  shall  be 
pleaded  just  as  is  now  done  in  the  Quarter  Court,  save  and  except 
that  when  four  twelves  are  named  in  the  Fifth  Court,  then  the 
plaintiff  shall  name  and  set  aside  six  men  out  of  the  court,  and  the 
defendant  other  six;  but  if  he  will  not  set  them  aside,  then  the 
plaintiff  shall  name  them  and  set  them  aside  as  he  has  done  with  his 
own  six ;  but  if  the  plaintiff  does  not  set  them  aside,  then  the  suit 
comes  to  naught,  for  three  twelves  shall  utter  judgment  on  all 
suits.  We  shall  also  have  this  arrangement  in  the  Court  of  Laws, 
that  those  only  shall  have  the  right  to  make  or  change  laws  who 
sit  on  the  middle  bench,  and  to  this  bench  those  only  shall  be 
chosen  who  are  wisest  and  best.  There,  too,  shall  the  Fifth  Court 
sit ;  but  if  those  who  sit  in  the  Court  of  Laws  are  not  agreed  as 
to  what  they  shall  allow  or  bring  in  as  law,  then  they  shall  clear 
the  court  for  a  division,  and  the  majority  shall  bind  the  rest ;  but 
if  any  man  who  has  a  seat  in  the  Court  be  outside  the  Court  of 
Laws  and  cannot  get  inside  it,  or  thinks  himself  overborne  in 
the  suit,  than  he  shall  forbid  them  by  a  protest,  so  that  they  can 
hear  it  in  the  Court,  and  then  he  has  made  all  their  grants  and  all 
their  decisions  void  and  of  none  effect,  and  stopped  them  by  his 
protest." 

After  that,  Skapti,  Thorod's  son  brought  the  Fifth  Court  into 
the  law,  and  all  that  was  spoken  of  before.  Then  men  went  to 
the  Hill  of  Laws,  and  men  set  up  new  priesthoods  :  In  the  North- 
landers'  Quarter  were  these  new  priesthoods.  The  priesthood  of 
the  Melmen  in  Midfirth,  and  the  Laufesingers'  priesthood  in  the 
Eyjafirth. 

Then  Njal  begged  for  a  hearing,  and  spoke  thus :  "  It  is  known 
to  many  men  what  passed  between  my  sons  and  the  men  of  Grit- 
water  when  they  slew  Thrain,  Sigfus'  son.  But  for  all  that  we 
settled  the  matter ;  and  now  I  have  taken  Hauskuld  into  my  house, 
and  planned  a  marriage  for  him  if  he  can  get  a  priesthood  any- 
where ;  but  no  man  will  sell  his  priesthood,  and  so  I  will  beg  you 
to  give  me  leave  to  set  up  a  new  priesthood  at  Whiteness  for  Haus- 
kuld." 

He  got  this  leave  from  all,  and  after  that  he  set  up  the  new 
priesthood  for  Hauskuld ;  and  he  was  afterwards  called  Hauskuld, 
the  Priest  of  Whiteness. 


150  GENERAL   LITERATURE  [Pakt  I, 

106.  VALGARD   THE    GUILEFUL  PLOTS   TO    INVOLVE    NJAL'S 
SONS  IN  A  BLOOD-FEUD  BY  TALE-BEARING 


108.  OF  THE  SLANDER  OF  MORD,  VALGARD'S  SON 

4c  :(«  H<  ^  *  H:  ^ 

109.   OF  MORD  AND  NJAL'S  SONS 

It  happened  one  day  that  Mord  came  to  Bergthorsknoll.  He 
and  Kari  and  Njal's  sons  fell  a-talking  at  once,  and  Mord  slanders 
Hauskuld  after  his  wont,  and  has  now  many  new  tales  to  tell,  and 
does  naught  but  egg  Sharphedinn  and  them  on  to  slay  Hauskuld, 
and  said  he  would  be  beforehand  with  them  if  they  did  not  fall  on 
him  at  once. 

"I  will  let  thee  have  thy  way  in  this,"  says  Skarphedinn,  "if 
thou  wilt  fare  with  us,  and  have  some  hand  in  it." 

"That  I  am  ready  to  do,"  says  Mord,  and  so  they  bound  that 
fast  with  promises,  and  he  was  to  come  there  that  evening. 

Bergthora  asked  Njal,  "What  are  they  talking  about  out  of 
doors?" 

"I  am  not  in  their  counsels,"  says  Njal,  "but  I  was  seldom  left 
out  of  them  when  their  plans  were  good." 

Skarphedinn  did  not  lie  down  to  rest  that  evening,  nor  his 
brothers,  nor  Kari. 

That  same  night,  when  it  was  well-nigh  spent,  came  Mord, 
Valgard's  son,  and  Njal's  sons  and  Kari  took  their  weapons  and 
rode  away.  They  fared  till  they  came  to  Ossaby,  and  bided  there 
by  a  fence.     The  weather  was  good,  and  the  sun  just  risen. 

110.  THE  SLAYING  OF  HAUSKULD,  THE  PRIEST  OF  WHITE- 
NESS 


111.  OF  HILDIGUNNA  AND  MORD  VALGARD'S  SON 

Hildigunna  woke  up  and  found  that  Hauskuld  was  away  out 
of  his  bed. 

"Hard  have  been  my  dreams,"  she  said,  "and  not  good ;  but  go 
and  search  for  him,  Hauskuld." 

So  they  searched  for  him  about  the  homestead  and  found  him 
not. 


Chap.  VI.]  NJALS   SAGA  151 

By  that  time  she  had  dressed  herself ;  then  she  goes  and  two  men 
with  her,  to  the  fence,  and  there  they  find  Hauskuld  slain. 

Just  then,  too,  came  up  Mord  Valgard's  son's  shepherd,  and 
told  her  that  Njal's  sons  had  gone  down  thence,  "and,"  he  said, 
"Skarphedinn  called  out  to  me  and  gave  notice  of  the  slaying  as 
done  by  him." 

"It  were  a  manly  deed,"  she  says,  "if  one  man  had  been  at  it." 

She  took  the  cloak  and  wiped  off  all  the  blood  with  it,  and 
wrapped  the  gouts  of  gore  up  in  it,  and  so  folded  it  together  and 
laid  it  up  in  her  chest. 

Now  she  sent  a  man  up  to  Gritwater  to  tell  the  tidings  thither, 
but  Mord  was  there  before  him,  and  had  already  told  the  tidings. 
There,  too,  was  come  Kettle  of  the  Mark. 

Thorgerda  said  to  Kettle,  "  Now  is  Hauskuld  dead  as  we  know, 
and  now  bear  in  mind  what  thou  promisedst  to  do  when  thou 
tookest  him  for  thy  foster  child." 

"It  may  well  be,"  says  Kettle,  "that  I  promised  very  many 
things  then,  for  I  thought  not  that  these  days  would  ever  befall  us 
that  have  now  come  to  pass ;  but  yet  I  am  come  into  a  strait,  for 
'nose  is  next  of  kin  to  eyes,'  since  I  have  Njal's  daughter  to  wife." 

"Art  thou  willing,  then,"  says  Thorgerda,  "that  Mord  should 
give  notice  of  the  suit  for  the  slaying  ?" 

"I  know  not  that,"  says  Kettle,  "for  methinks  ill  comes  from 
him  more  often  than  good." 

But  as  soon  as  ever  Mord  began  to  speak  to  Kettle  he  fared  the 
same  as  others,  in  that  he  thought  as  though  Mord  would  be  true 
to  him,  and  so  the  end  of  their  counsel  was  that  Mord  should  give 
notice  of  the  slaying,  and  get  ready  the  suit  in  every  way  before 
the  Thing. 

Then  Mord  fared  down  to  Ossaby,  and  thither  came  nine 
neighbours  who  dwelt  nearest  the  spot. 

Mord  had  ten  men  with  him.  He  shows  the  neighbours  Haus- 
kuld's  wounds,  and  takes  witness  to  the  hurts,  and  names  a  man 
as  the  dealer  of  every  wound  save  one ;  that  he  made  as  though  he 
knew  not  who  had  dealt  it,  but  that  wound  he  had  dealt  himself. 
But  the  slaying  he  gave  notice  of  at  Skarphedinn's  hand,  and  the 
wounds  at  his  brothers'  and  Kari's. 

After  that  he  called  on  nine  neighbours  who  dwelt  nearest  the 
spot  to  ride  away  from  home  to  the  Althing  on  the  inquest. 

After  that  he  rode  home.  He  scarce  ever  met  Njal's  sons,  and 
when  he  did  meet  them,  he  was  cross,  and  that  was  part  of  their 
plan. 


152  GENERAL   LITERATURE  [Part  I.    ; 

The  slaying  of  Hauskuld  was  heard  over  all  the  land,  and  was 
ill-spoken  of.  Njal's  sons  went  to  see  Asgrim,  Ellidagrim's  son,- 
and  asked  him  for  aid. 

"Ye  very  well  know  that  ye  may  look  that  I  shall  help  you 
in  all  great  suits,  but  still  my  heart  is  heavy  about  this  suit,  for 
there  are  many  who  have  the  blood  feud,  and  this  slaying  is  ill- 
spoken  of  over  all  the  land." 

Now  Njal's  sons  fare  home. 


114.  OF  FLOSI,  THORD'S  SON 

Flosi  hears  of  Hauskuld's  slaying,  and  that  brings  him  much 
grief  and  wrath,  but  still  he  kept  his  feelings  well  in  hand.  He 
was  told  how  the  suit  had  been  set  on  foot,  as  has  been  said,  for 
Hauskuld's  slaying,  and  he  said  little  about  it.  He  sent  word  to 
Hall  of  the  Side,  his  father-in-law,  and  to  Ljot  his  son,  that  they 
must  gather  in  a  great  company  at  the  Thing.  Ljot  was  thought 
the  most  hopeful  man  for  a  chief  away  there  east.  It  had  been 
foretold  that'  if  he  could  ride  three  summers  running  to  the  Thing, 
and  come  safe  and  sound  home,  that  then  he  would  be  the  greatest 
chief  in  all  his  family,  and  the  oldest  man.  He  had  then  ridden  one 
summer  to  the  Thing,  and  now  he  meant  to  ride  the  second  time. 

Flosi  sent  word  to  Kol,  Thorstein's  son,  and  Glum,  the  son  of 
Hilldir  the  Old,  the  son  of  Gerleif,  the  son  of  Aunund  Wallet-back, 
and  to  Modolf,  Kettle's  son,  and  they  all  rode  to  meet  Flosi. 

Hall  gave  his  word,  too,  to  gather  a  great  company,  and  Flosi 
rode  till  he  came  to  Kirkby,  to  Surt,  Asbjorn's  son.  Then  Flosi 
sent  after  Kolbein,  Egil's  son,  his  brother's  son,  and  he  came  to  him 
there.  Thence  he  rode  to  Headbrink.  There  dwelt  Thorgrim 
the  Showy,  the  son  of  Thorkel  the  Fair.  Flosi  begged  him  to  ride 
to  the  Althing  with  him,  and  he  said  yea  to  the  journey,  and  spoke 
thus  to  Flosi,  "Often  hast  thou  been  more  glad,  master,  than 
thou  art  now,  but  thou  hast  some  right  to  be  so." 

"Of  a  truth,"  said  Flosi,  "that  hath  now  come  on  my  hands, 
which  I  would  give  all  my  goods  that  it  had  never  happened. 
Ill  seed  has  been  sown,  and  so  an  ill  crop  will  spring  from  it." 

Thence  he  rode  over  Arnstacksheath,  and  so  to  Solheim  that 
evening.  There  dwelt  Lodmund,- Wolf's  son,  but  he  was  a  great 
friend  of  Flosi,  and  there  he  stayed  that  night,  and  next  morning 
Lodmund  rode  with  him  into  the  Dale. 

There  dwelt  Runolf,  the  son  of  Wolf  Aurpriest. 


Chap.  VI.]  ^  NJALS  SAGA  153 

Flosi  said  to  Runolf,  "Here  we  shall  have  true  stories  as  to 
the  slaying  of  Hauskuld,  the  Priest  of  Whiteness.  Thou  art  a 
truthful  man,  and  hast  got  at  the  truth  by  asking,  and  I  will  trust 
to  all  that  thou  tellest  me  as  to  what  was  the  cause  of  quarrel 
between  them." 

"There  is  no  good  in  mincing  the  matter,"  said  Runolf,  "but  we 
must  say  outright  that  he  has  been  slain  for  less  than  no  cause; 
and  his  death  is  a  great  grief  to  all  men.  No  one  thinks  it  so  much 
a  loss  as  Njal,  his  foster-father." 

"Then  they  will  be  ill  off  for  help  from  men,"  says  Flosi ;  "and 
they  will  find  no  one  to  speak  up  for  them." 

"So  it  will  be,"  says  Runolf,  "unless  it  be  otherwise  fore- 
doomed." 

"What  has  been  done  in  the  suit?"  says  Flosi. 

"Now  the  neighbours  have  been  summoned  on  the  inquest," 
says  Runolf,  "and  due  notice  given  of  the  suit  for  manslaughter." 

"Who  took  that  step?"  asks  Flosi. 

"Mord,  Valgard's  son,"  says  Runolf. 

"How  far  is  that  to  be  trusted?"  says  Flosi. 

"He  is  of  my  kin,"  says  Runolf;  "but  still  if  I  tell  the  truth  of 
him,  I  must  say  that  more  men  reap  ill  than  good  from  him.  But 
this  one  thing  I  will  ask  of  thee,  Flosi,  that  thou  givest  rest  to 
thy  wrath,  and  takest  the  matter  up  in  such  a  way  as  may  lead 
to  the  least  trouble.  For  Njal  will  make  a  good  offer,  and  so  will 
others  of  the  best  men." 

"Ride  thou  then  to  the  Thing,  Runolf,"  said  Flosi,  "and  thy 
words  shall  have  much  weight  with  me,  unless  things  turn  out  worse 
than  they  should." 

After  that  they  cease  speaking  about  it,  and  Runolf  promised  to 
go  to  the  Thing. 

Runolf  sent  word  to  Hafr  the  Wise,  his  kinsman,  and  he  rode 
thither  at  once. 

Thence  Flosi  rode  to  Ossaby.  • 


116.   OF  FLOSI  AND  MORD  AND  THE  SONS  OF  SIGFUS 

The  sons  of  Sigfus  heard  how  Flosi  was  at  Holtford,  and  they 
rode  thither  to  meet  him,  and  there  were  Kettle  of  the  Mark,  and 
Lambi  his  brother,  Thorkell  and  Mord,  the  sons  of  Sigfus,  Sigmund 
their  brother,  and  Lambi,  Sigurd's  son,  and  Gunnar,  Lambi's  son, 
and  Grani;  Gunnar's  son,  and  Vebrand,  Hamond's  son. 


154  GENERAL    LITERATURE  [Part  I. 

Flosi  stood  up  to  meet  them,  and  greeted  them  gladly.  So 
they  went  down  the  river.  Flosi  had  the  whole  story  from  them 
about  the  slaying,  and  there  was  no  difference  between  them  and 
Kettle  of  the  Mark's  story. 

Flosi  spoke  to  Kettle  of  the  Mark,  and  said,  "This  now  I  ask 
of  thee ;  how  tightly  are  your  hearts  knit  as  to  this  suit,  thou  and 
the  other  sons  of  Sigfus?" 

"My  wish  is,"  said  Kettle,  "that  there  should  be  peace  between 
us,  but  yet  I  have  sworn  an  oath  not  to  part  from  this  suit  till  it 
has  been  brought  somehow  to  an  end,  and  to  lay  my  life  on  it." 

"Thou  art  a  good  man  and  true,"  said  Flosi,  "and  it  is  well 
to  have  such  men  with  one." 

Then  Grani,  Gunnar's  son  and  Lambi,  Sigurd's  son  both  spoke 
together,  and  said,  "We  wish  for  outlawry  and  death." 

"It  is  not  given  us,"  said  Flosi,  "both  to  share  and  choose,  we 
must  not  take  what  we  can  get." 

"I  have  had  it  in  my  heart,"  says  Grani,  "ever  since  they  slew 
Thrain  by  Markfleet,  and  after  that  his  son  Hauskuld,  never  to 
be  atoned  with  them  by  a  lasting  peace,  for  I  would  willingly  stand 
by  when  they  were  all  slain,  every  man  of  them." 

"Thou  hast  stood  so  near  to  them,"  said  Flosi,  "that  thou  might- 
est  have  avenged  these  things  hadst  thou  had  the  heart  and  man- 
hood. Methinks  thou  and  many  others  now  ask  for  what  ye 
would  give  much  money  hereafter  never  to  have  had  a  share  in. 
I  see  this  clearly,  that  though  we  slay  Njal  or  his  sons,  still  they 
are  men  of  so  great  worth,  and  of  such  good  family,  that  there  will 
be  such  a  blood  feud  and  hue  and  cry  after  them,  that  we  shall 
have  to  fall  on  our  knees  before  many  a  man,  and  beg  for  help, 
ere  we  get  an  atonement  and  find  our  way  out  of  this  strait.  Ye 
may  make  up  your  minds,  then,  that  many  will  become  poor  who 
before  had  great  goods,  but  some  of  you  will  lose  both  goods  and 
life." 

Mord,  Valgard's  son  rode  to  meet  Flosi,  and  said  he  would  ride 
to  the  Thing  with  him  with  all  his  men. 


117.  NJAL  AND  SKARPHEDINN  TALK  TOGETHER 

Now,  we  must  say  how  Njal  said  to  Skarphedinn. 
"What  plan  have  ye  laid  down  for  yourselves,  thou  and  thy 
brothers  and  Kari  ?  " 

"Little  reck  we  of  dreams  in  most  matters,"  said  Skarphedinn; 


Chap.  VI.]  NJALS  SAGA  155 

''  but  if  thou  must  know,  we  shall  ride  to  Tongue  to  Asgrim,  Elli- 
dagrim's  son,  and  thence  to  the  Thing ;  but  what  meanest  thou 
to  do  about  thine  own  journey,  father?" 

"I  shall  ride  to  the  Thing,"  says  Njal,  "for  it  belongs  to  my 
honour  not  to  be  severed  from  your  suit  so  long  as  I  live.  I  ween 
that  many  men  will  have  good  words  to  say  of  me,  and  so  I  shall 
stand  you  in  good  stead,  and  do  you  no  harm." 

There,  too,  was  Thorhall,  Asgrim's  son,  and  Njal's  foster-son. 
The  sons  of  Njal  laughed  at  him  because  he  was  clad  in  a  coat  of 
russet,  and  asked  how  long  he  meant  to  wear  that  ? 

"I  shall  have  thrown  it  off,"  he  said,  "when  I  have  to  follow  up 
the  blood-feud  for  my  foster-father." 

"There  will  ever  be  most  good  in  thee,"  said  Njal,  "when  there 
is  most  need  of  it." 

So  they  all  busked  them  to  ride  away  from  home,  and  were 
nigh'thirty  men  in  all,  and  rode  till  they  came  to  Thursowater. 
Then  came  after  them  Njal's  kinsmen,  Thorleif  Crow,  and  Thor- 
grim  the  Big ;  they  were  Holt-Thorir's  sons,  and  offered  their  help 
and  following  to  Njal's  sons,  'and  they  took  that  gladly. 

So  they  rode  altogether  across  Thursowater,  until  they  came  on 
Laxwater  bank,  and  took  a  rest  and  baited  their  horses  there, 
and  there  Hjallti,  Skeggi's  son  came  to  meet  them,  and  Njal's 
sons  fell  to  talking  with  him,  and  they  talked  long  and  low. 


And  after  that  they  all  rode  together  till  they  come  up  on  the 
Thing-field,  and  fit  up  their  booths. 

118.  ASGRIM  AND  NJAL'S  SONS  PRAY  MEN  FOR  HELP 

By  that  time  Flosi  had  come  to  the  Thing,  and  filled  all  his 
booths.  Runolf  filled  the  Dale-dwellers'  booths,  and  Mord 
the  booths  of  the  men  from  Rangriver.  Hall  of  the  Side  had  long 
since  come  from  the  east,  but  scarce  any  of  the  other  men ;  but  still 
Hall  of  the  Side  had  come  with  a  great  band,  and  joined  this  at 
once  to  Flosi's  company,  and  begged  him  to  take  an  atonement  and 
make  peace. 

Hall  was  a  wise  man  and  good-hearted.  Flosi  answered  him 
well  in  everything,  but  gave  way  in  nothing. 

Hall  asked  what  men  had  promised  him  help?  Flosi  named 
Mord,  Valgard's  son,  and  said  he  had  asked  for  his  daughter  at 
the  hand  of  his  kinsman  Starkad. 


156  GENERAL  LITERATURE  [Part  I.  ^ 

Hall  said  she  was  a  good  match,  but  it  was  ill  dealing  with  Mord^ 
"And  that  thou  wilt  put  to  the  proof  ere  this  Thing  be  over." 

After  that  they  ceased  talking. 

One  day  Njal  and  Asgrim  had  a  long  talk  in  secret. 

Then  all  at  once  Asgrim  sprang  up  and  said  to  Njal's  sons, 
"We  must  set  about  seeking  friends,  that  we  may  not  be  over- 
borne by  force ;  for  this  suit  will  be  followed  up  boldly." 

Then  Asgrim  went  out,  and  Helgi,  Njal's  son  next;  then  Kari, 
Solmund's  son ;  then  Grim,  Njal's  son ;  then  Skarphedinn ;  then 
Thorhall ;   then  Thorgrim  the  Big ;   then  Thorleif  Crow. 

They  went  to  the  booth  of  Gizur  the  White  and  inside  it.  Gizur 
stood  up  to  meet  them,  and  bade  them  sit  down  and  drink. 

"Not  thitherward,"  says  Asgrim,  "tends  our  way,  and  we  will 
speak  our  errand  out  loud,  and  not  mutter  and  mouth  about  it. 
What  help  shall  I  have  from  thee,  as  thou  art  my  kinsman  ?  " 

"Jorunn,  my  sister,"  said  Gizur,  "would  wish  that  I  should 
not  shrink  from  standing  by  thee;  and  so  it  shall  be  now  and 
hereafter,  that  we  will  both  of  us  have  the  same  fate." 

Asgrim  thanked  him,  and  went  away  afterwards. 

Then  Skarphedinn  asked,  "Whither  shall  we  go  now?" 

"To  the  booths  of  the  men  of  Olfus,"  says  Asgrim. 

So  they  went  thither,  and  Asgrim  asked  whether  Skapti, 
Thorod's  son  were  in  the  booth  ?  He  was  told  that  he  was.  Then 
they  went  inside  the  booth. 

Skapti  sate  on  the  cross-bench,  and  greeted  Asgrim,  and  he 
took  the  greeting  well. 

Skapti  offered  Asgrim  a  seat  by  his  side,  but  Asgrim  said  he 
should  only  stay  there  a  little  while,  "  But  still  we  have  an  errand 
to  thee." 

"Let  me  hear  it?"  says  Skapti. 

"  I  wish  to  beg  thee  for  thy  help,  that  thou  wilt  stand  by  us  in 
our  suit." 

"One  thing  I  had  hoped,"  says  Skapti,  "and  that  is,  that  neither 
you  nor  your  troubles  would  ever  come  into  my  dwelling." 

"Such  things  are  ill-spoken,"  says  Asgrim,  "when  a  man  is  the 
last  to  help  others,  when  most  lies  on  his  aid." 

"Who  is  yon  man,"  says  Skapti,  "before  whom  four  men  walk, 
a  big  burly  man,  and  pale-faced,  unlucky-looking,  well-knit,  and 
troll-like?" 

"My  name  is  Skarphedinn,"  he  answers,  "and  thou  hast  often 
seen  me  at  the  Thing;  but  in  this  I  am  wiser  than  you,  that  I 
have  no  need  to  ask  what  thy  name  is.    Thy  name  is  Skapti, 


Chap.  VI.]  NJALS  SAGA  157 

Thorod's  son,  but  before  thou  calledst  thyself  '  Bristlepoll/  after 
thou  hadst  slain  Kettle  of  Elda;  then  thou  shavedst  thy  poll, 
and  puttedst  pitch  on  thy  head,  and  then  thou  hiredst  thralls 
to  cut  up  a  sod  of  turf,  and  thou  creptest  underneath  it  to  spend 
the  night.  After  that  thou  wentest  to  Thorolf,  Lopt's  son  of 
Eyrar,  and  he  took  thee  on  board,  and  bore  thee  out  here  in  his 
meal  sacks." 

After  that  Asgrim  and  his  band  went  out,  and  Skarphedinn 
asked,  "  Whither  shall  we  go  now  ?  " 

"To  Snorri  the  Priest's  booth,"  says  Asgrim. 

Then  they  went  to  Snorri's  booth.  There  was  a  man  outside 
before  the  booth,  and  Asgrim  asked  whether  Snorri  were  in  the 
booth. 

The  man  said  he  was. 

Asgrim  went  into  the  booth,  and  all  the  others.  Snorri  was 
sitting  on  the  cross-bench,  and  Asgrim  went  and  stood  before 
him,  and  hailed  him  well. 

Snorri  took  his  greeting  blithely,  and  bade  him  sit  down. 

Asgrim  said  he  should  be  only  a  short  time  there,  ''  But  we  have 
an  errand  with  thee." 

Snorri  bade  him  tell  it. 

"I  would,"  said  Asgrim,  "that  thou  wouldst  come  with  me  to 
the  court,  and  stand  by  me  with  thy  help,  for  thou  art  a  wise  man, 
and  a  great  man  of  business." 

"Suits  fall  heavy  on  us  now,"  says  Snorri  the  Priest,  "and  now 
many  men  push  forward  against  us,  and  so  we  are  slow  to  take  up 
the  troublesome  suits  of  other  men  from  other  quarters." 

"Thou  mayest  stand  excused,"  says  Asgrim,  "for  thou  art  not 
in  our  debt  for  any  service." 

"I  know,"  says  Snorri,  "that  thou  art  a  good  man  and  true, 
and  I  will  promise  thee  this,  that  I  will  not  be  against  thee,  and 
not  yield  help  to  thy  foes." 

Asgrim  thanked  him,  and  Snorri  the  Priest  asked,  "Who  is 
that  man  before  whom  four  go,  pale-faced,  and  sharp-featured, 
and  who  shows  his  front  teeth,  and  has  his  axe  aloft  on 
his  shoulder  ?  " 

"My  name  is  Hedinn,"  he  says,  "but  some  men  call  me  Skarp- 
hedinn by  my  full  name ;  but  what  more  hast  thou  to  say  to  me  ?  " 

"This,"  said  Snorri  the  Priest,  "that  methinks  thou  art  a  well- 
knit,  ready-handed  man,  but  yet  I  guess  that  the  best  part  of 
thy  good  fortune  is  past,  and  I  ween  thou  hast  now  not  long  to 
live." 


158  GENERAL  LITERATURE  [Part  I. 

"That  is  well,"  says  Skarphedinn,  "for  that  is  a  debt  we  all 
have  to  pay,  but  still  it  were  more  needful  to  avenge  thy  father 
than  to  foretell  my  fate  in  this  way." 

"Many  have  said  that  before,"  says  Snorri,  "and  I  will  not  be 
angry  at  such  words." 

After  that  they  went  out,  and  got  no  help  there.  Then  they 
fared  to  the  booths  of  the  men  of  Skagafirth.  There  Hafr  the 
Wealthy  had  his  booth.  The  mother  of  Hafr  was  named  Thoruna, 
she  was  a  daughter  of  Asbjorn  Baldpate  of  Myrka,  the  son  of 
Hrosbjorn. 

Asgrim  and  his  band  went  into  the  booth,  and  Hafr  sate  in  the 
midst  of  it,  and  was  talking  to  a  man. 

Asgrim  went  up  to  him,  and  hailed  him  well ;  he  took  it  kindly, 
and  bade  him  sit  down. 

"This  I  would  ask  of  thee,"  said  Asgrim,  "that  thou  wouldst 
grant  me  and  my  sons-in-law  help." 

Hafr  answered  sharp  and  quick,  and  said  he  would  have  nothing 
to  do  with  their  troubles. 

"But  still  I  must  ask  who  that  pale-faced  man  is  before  whom 
four  men  go,  so  ill-looking,  as  though  he  had  come  out  of  the  sea- 
crags." 

"Never  mind,  milksop  that  thou  art!"  said  Skarphedinn, 
"who  I  am,  for  I  will  dare  to  go  forward  wherever  thou  standest 
before  me,  and  little  would  I  fear  though  such  striplings  were  in 
my  path.  'Twere  rather  thy  duty,  too,  to  get  back  thy  sister 
Swanlauga,  whom  Eydis  Ironsword  and  his  messmate  Stediakoll 
took  away  out  of  thy  house,  but  thou  didst  not  dare  to  do  aught 
against  them." 

"Let  us  go  out,"  said  Asgrim,  "there  is  no  hope  of  help 
here." 

Then  they  went  out  to  the  booths  of  men  of  Modruvale,  and 
asked  whether  Gudmund  the  Powerful  were  in  the  booth,  but 
they  were  told  he  was. 

Then  they  went  into  the  booth.  There  was  a  high  seat  in  the 
midst  of  it,  and  there  sate  Gudmund  the  Powerful. 

Asgrim  went  and  stood  before  him,  and  hailed  him. 

Gudmund  took  his  greeting  well,  and  asked  him  to  sit  down. 

"I  will  not  sit,"  said  Asgrim,  "but  I  wish  to  pray  thee  for  help, 
for  thou  art  a  bold  man  and  a  mighty  chief." 

"I  will  not  be  against  thee,"  said  Gudmund,  "but  if  I  see  fit 
to  yield  thee  help,  we  may  well  talk  of  that  afterwards,"  and  so 
he  treated  them  well  and  kindly  in  every  way. 


Chap.  VI.]  NJALS  SAGA  159 

Asgrim  thanked  him  for  his  words,  and  Gudmund  said,  "There 
is  one  man  in  your  band  at  whom  I  have  gazed  for  a  while, 
and  he  seems  to  me  more  terrible  than  most  men  that  I  have 
seen." 

"Which  is  he?"  says  Asgrim. 

"Four  go  before  him,"  says  Gudmund;  "dark  brown  is  his 
hair,  and  pale  is  his  face;  tall  of  growth  and  sturdy.  So 
quick  and  shifty  in  his  manliness  that  I  would  rather  have  his 
following  than  that  of  ten  other  men ;  but  yet  the  man  is  unlucky- 
looking." 

"I  know,"  said  Skarphedinn,  "that  thou  speakest  at  me,  but 
it  does  not  go  in  the  same  way  as  to  luck  with  me  and  thee.  I 
have  blame,  indeed,  from  the  slaying  of  Hauskuld,  the  Whiteness 
Priest,  as  is  fair  and  right;  but  both  Thorkel  Foulmouth  and 
Thorir,  Helgi's  son  spread  abroad  bad  stories  about  thee,  and 
that  has  tried  thy  temper  very  much." 

Then  they  went  out,  and  Skarphedinn  said,  "Whither  shall  we 
go  now?" 

"To  the  booths  of  the  men  of  Lightwater,"  said  Asgrim. 

There  Thorkel  Foulmouth  had  set  up  his  booth. 

Thorkel  Foulmouth  had  been  abroad  and  worked  his  way  to 
fame  in  other  lands.  He  had  slain  a  robber  east  in  Jemtland's 
wood,  and  then  he  fared  on  east  into  Sweden,  and  was  a  messmate 
of  Saurkvir  the  Churl,  and  they  harried  eastward  ho;  but  to 
the  east  of  Baltic  side  ^  Thorkel  had  to  fetch  water  for  them  one 
evening;  then  he  met  a  wild  man  of  the  woods,^  and  struggled 
against  him  long ;  but  the  end  of  it  was  that  he  slew  the  wild  man. 
Thence  he  fared  east  into  Adalsyssla,  and  there  he  slew  a  flying 
fire-drake.  After  that  he  fared  back  to  Sweden,  and  thence  to 
Norway,  and  so  out  to  Iceland,  and  let  these  deeds  of  derring  do 
be  carved  over  his  shut  bed,  and  on  the  stool  before  his  high  seat. 
He  fought,  too,  on  Lightwater  way  with  his  brothers  against 
Gudmund  the  Powerful,  and  the  men  of  Lightwater  won  the  day. 
He  and  Thorir,  Helgi's  son  spread  abroad  bad  stories  about  Gud- 
mund. Thorkel  said  there  was  no  man  in  Iceland  with  whom 
he  would  not  fight  in  single  combat,  or  yield  an  inch  to,  if  need  were. 
He  was  called  Thorkel  Foulmouth,  because  he  spared  no  one  with 
whom  he  had  to  do  either  in  word  or  deed. 

1  "  Baltic  side."  This  probably  means  a  part  of  the  Finnish  coast  in  the 
Gulf  of  Bothnia.    See  "  Fornm.  Sogur,"  xii.  264-5. 

2"^il(j  man  of  the  woods."  In  the  original  Finngdlkn,  a  fabulous 
monster,  half  man  and  half  beast. 


160  GENERAL  LITERATURE  [Part  I. 

119.  OF  SKARPHEDINN  AND  THORKEL  FOULMOUTH 

Asgrim  and  his  fellows  went  to  Tliorkel  Foulmouth's  booth, 
and  Asgrim  said  then  to  his  companions,  ''This  booth  Thorkel 
Foulmouth  owns,  a  great  champion,  and  it  were  worth  much  to 
us  to  get  his  help.  We  must  here  take  heed  in  everything,  for  he 
is  self-willed  and  bad-tempered ;  and  now  I  will  beg  thee,  Skafp- 
hedinn,  not  to  let  thyself  be  led  into  our  talk." 

Skarphedinn  smiled  at  that.  He  was  so  clad,  he  had  on  a  blue 
kirtle  and  grey  breeks,  and  black  shoes  on  his  feet,  coming  high  up 
his  leg ;  he  had  a  silver  belt  about  him,  and  that  same  axe  in  his 
hand  with  which  he  slew  Thrain,  and  which  he  called  the  "  ogress 
of  war,"  a  round  buckler,  and  a  silken  band  round  his  brow,  and 
his  hair  brushed  back  behind  his  ears.  He  was  the  most  soldier- 
like of  men,  and  by  that  all  men  knew  him.  He  went  in  his  ap- 
pointed place,  and  neither  before  nor  behind. 

Now  they  went  into  the  booth  and  into  its  inner  chamber. 
Thorkel  sate  in  the  middle  of  the  cross-bench,  and  his  men  away 
from  him  on  all  sides.  Asgrim  hailed  him,  and  Thorkel  took  the 
greeting  well,  and  Asgrim  said  to  him,  ''  For  this  have  we  come 
hither,  to  ask  help  of  thee,  and  that  thou  wouldst  come  to  the 
Court  with  us." 

"  What  need  can  ye  have  of  my  help,"  said  Thorkel,  "  when  ye 
have  already  gone  to  Gudmund;  he  must  surely  have  promised 
thee  his  help?  " 

"  We  could  not  get  his  help,"  says  Asgrim. 

"  Then  Gudmund  thought  the  suit  likely  to  make  him  foes,'' 
said  Thorkel ;  ''  and  so  no  doubt  it  will  be,  for  such  deeds  are  the 
worst  that  have  ever  been  done;  nor  do  I  know  what  can  have 
driven  you  to  come  hither  to  me,  and  to  think  that  I  should  be 
easier  to  undertake  your  suit  than  Gudmund,  or  that  I  would 
back  a  wrongful  quarrel." 

Then  Asgrim  held  his  peace,  and  thought  it  would  be  hard  work 
to  win  him  over. 

Then  Thorkel  went  on  and  said,  "  Who  is  that  big  and  ugly 
fellow,  before  whom  four  men  go,  pale-faced  and  sharp  featured, 
and  unlucky-looking,  and  cross-grained  ?  " 

"  My  name  is  Skarphedinn,"  said  Skarphedinn,  "  and  thou 
hast  no  right  to  pick  me  out,  a  guiltless  man,  for  thy  railing. 
It  never  has  befallen  me  to  make  my  father  bow  down  before  me, 
or  to  have  fought  against  him,  as  thou  didst  with  thy  father. 
Thou  hast  ridden  little  to  the  Althing,  or  toiled  in  quarrels  at  it, 


Chap.  VI.]  NJALS   SAGA  161 

and  no  doubt  it  is  handier  for  thee  to  mind  thy  milking  pails  at 
home  than  to  be  here  at  Axewater  in  idleness.  But  stay,  it  were 
as  well  if  thou  pickedst  out  from  thy  teeth  that  steak  of  mare's 
rump  which  thou  atest  ere  thou  rodest  to  the  Thing,  while  thy 
shepherd  looked  on  all  the  while,  and  wondered  that  thou  couldst 
work  such  filthiness  !  " 

Then  Thorkel  sprang  up  in  mickle  wrath,  and  clutched  his 
short  sword  and  said,  "  This  sword  I  got  in  Sweden  when  I  slew 
the  greatest  champion,  but  since  then  I  have  slain  many  a  man 
with  it,  and  as  soon  as  ever  I  reach  thee  I  will  drive  it  through  thee, 
and  thou  shalt  take  that  for  thy  bitter  words." 

Skarphedinn  stood  with  his  axe  aloft,  and  smiled  scornfully  and 
said,  ''  This  axe  I  had  in  my  hand  when  I  leapt  twelve  ells  across 
Markfleet  and  slew  Thrain,  Sigfus'  son,  and  eight  of  them  stood 
before  me,  and  none  of  them  could  touch  me.  Never  have  I 
aimed  weapon  at  man  that  I  have  not  smitten  him." 

And  with  that  he  tore  himself  from  his  brothers,  and  Kari  his 
brother-in-law,  and  strode  forward  to  Thorkel. 

Then  Skarphedinn  said,  "  Now,  Thorkel  Foulmouth,  do  one  of 
these  two  things :  sheathe  thy  sword  and  sit  thee  down,  or  I 
drive  the  axe  into  thy  head  and  cleave  thee  down  to  the 
chine." 

Then  Thorkel  sate  him  down  and  sheathed  the  sword,  and  such 
a  thing  never  happened  to  him  either  before  or  since. 

Then  Asgrim  and  his  band  go  out,  and  Skarphedinn  said, 
*'  Whither  shall  we  now  go  ?  " 

'*  Home  to  our  booths,"  answered  Asgrim. 

"  Then  we  fare  back  to  our  booths  wearied  of  begging,"  says 
Skarphedinn. 

"  In  many  places,"  said  Asgrim,  "  hast  thou  been  rather  sharp- 
tongued,  but  here  now,  in  what  Thorkel  had  a  share  methinks 
thou  hast  only  treated  him  as  is  fitting." 

Then  they  went  home  to  their  booths,  and  told  Njal,  word  for 
word,  all  that  had  been  done. 

''  Things,"  he  said,  "  draw  on  to  what  must  be." 

Now  Gudmund  the  Powerful  heard  what  has  passed  between 
Thorkel  and  Skarphedinn,  and  said,  "  Ye  all  know  how  things 
fared  between  us  and  the  men  of  Lightwater,  but  I  have  never 
suffered  such  scorn  and  mocking  at  their  hands  as  has  befallen 
Thorkel  from  Skarphedinn,  and  this  is  just  as  it  should  be." 

Then  he  said  to  Einar  of  Thvera,  his  brother,  "  Thou  shalt  go 
with  all  my  band,  and  stand  by  Njal's  sons  when  the  courts  go 


162  GENERAL   LITERATURE  [Part  I. 

out  to  try  suits ;  but  if  they  need  help  next  summer,  then  I  myself 
will  yield  them  help." 

Einar  agreed  to  that,  and  sent  and  told  Asgrim,  and  Asgrim 
said,  "  There  is  no  man  like  Gudmund  for  nobleness  of  mind," 
and  then  he  told  it  to  Njal." 

120.   OF    THE    PLEADING    OF    THE    SUIT 

The  next  day  Asgrim,  and  Gizur  the  White,  and  Hjallti,  Skeggi's 
son,  and  Einar  of  Thvera,  met  together.  There,  too,  was  Mord, 
Valgard's  son ;  he  had  then  let  the  suit  fall  from  his  hand,  and 
given  it  over  to  the  sons  of  Sigfus. 

Then  Asgrim  spoke. 

"  Thee  first  I  speak  to  about  this  matter,  Gizur  the  White,  and 
thee  Hjallti,  and  thee  Einar,  that  I  may  tell  you  how  the  suit 
stands.  It  will  be  known  to  all  of  you  that  Mord  took  up  the 
suit,  but  the  truth  of  the  matter  is,  that  Mord  was  at  Hauskuld's 
slaying,  and  wounded  him  with  that  wound,  for  giving  which  no 
man  was  named.  It  seems  to  me,  then,  that  this  suit  must  come 
to  naught  by  reason  of  a  lawful  flaw." 

"  Then  we  will  plead  it  at  once,"  says  Hjallti. 

''  It  is  not  good  counsel,"  said  Thorhall,  Asgrim's  son,  "  that 
this  should  not  be  hidden  until  the  courts  are  set." 

''How  so?"  asks  Hjallti. 

'Mf,"  said  Thorhall,  "they knew  now  at  once  that  the  suit  has 
been  wrongly  set  on  foot,  then  they  may  still  save  the  suit  by 
sending  a  man  home  from  the  Thing,  and  summoning  the  neigh- 
bours from  home  over  again,  and  calling  on  them  to  ride  to  the 
Thing,  and  then  the  suit  will  be  lawfully  set  on  foot." 

"  Thou  art  a  wise  man,  Thorhall,"  say  they,  "  and  we  will  take 
thy  counsel." 

After  that  each  man  went  to  his  booth. 

The  sons  of  Sigfus  gave  notice  of  their  suits  at  the  Hill  of  Laws, 
and  asked  in  what  Quarter  Courts  they  lay,  and  in  what  house 
in  the  district  the  defendants  dwelt.  But  on  the  Friday  night 
the  courts  were  to  go  out  to  try  suits,  and  so  the  Thing  was  quiet 
up  to  that  day. 

Many  sought  to  bring  about  an  atonement  between  them,  but 
Flosi  was  steadfast ;  but  others  were  still  more  wordy,  and  things 
looked  ill. 

Now  the  time  comes  when  the  courts  were  to  go  out,  on  the 
Friday  evening.     Then  the  whole  body  of  men  at  the  Thing  went 


Chap.  VI.]  NJALS   SAGA  163 

to  the  courts.  Flosi  stood  south  at  the  court  of  the  men  of  Rang- 
river,  and  his  band  with  him.  There  with  him  was  Hall  of  the 
Side,  and  Runolf  of  the  Dale,  Wolf,  Aurpriest's  son,  and  those  other 
men  who  had  promised  Flosi  help. 

But  north  of  the  court  of  the  men  of  Rangriver  stood  Asgrim, 
Ellidagrim's  son,  and  Gizur  the  White,  Hjallti,  Skeggi's  son,  and 
Einar  of  Thvera.  But  Njal's  sons  were  at  home  at  their  booth,  and 
Kari  and  Thorleif  Crow,  and  Thorgeir  Craggeir,  andThorgrim 
the  Big.  They  sate  all  with  their  weapons,  and  their  band  looked 
safe  from  onslaught. 

Njal  had  already  prayed  the  judges  to  go  into  the  court,  and  now 
the  sons  of  Sigfus  plead  their  suit.  They  took  witness  and  bade 
Njal's  sons  to  listen  to  their  oath ;  after  that  they  took  their  oath, 
and  then  they  declared  their  suit;  then  they  brought  forward 
witness  of  the  notice,  then  they  bade  the  neighbours  on  the  inquest 
to  take  their  seats,  then  they  called  on  Njal's  sons  to  challenge  the 
inquest. 

Then  up  stood  Thorhall,  Asgrim's  son,  and  took  witness,  and 
forbade  the  inquest  by  a  protest  to  utter  their  finding;  and  his 
ground  was,  that  he  who  had  given  notice  of  the  suit  was  truly 
under  the  ban  of  the  law,  and  was  himself  an  outlaw. 

"  Of  whom  speakest  thou  this  ?  "  says  Flosi. 

"  Mord,  Valgard's  son,"  said  Thorhall,  "  fared  to  Hauskuld's 
slaying  with  Njal's  sons,  and  wounded  him  with  that  wound  for 
which  no  man  was  named  when  witness  was  taken  to  the  death- 
wounds  ;  and  ye  can  say  nothing  against  this,  and  so  the  suit  comes 
to  naught." 


121.    OF    THE    AWARD    OF    ATONEMENT    BETWEEN    FLOSI 

AND  NJAL 

Then  Njal  stood  up  and  said,  "This  I  pray.  Hall  of  the  Side, 
and  Flosi,  and  all  the  sons  of  Sigfus,  and  all  our  men,  too,  that  ye 
will  not  go  away,  but  listen  to  my  words." 

They  did  so,  and  then  he  spoke  thus  :  "It  seems  to  me  as  though 
this  suit  were  come  to  naught,  and  it  is  likely  it  should,  for  it  hath 
sprung  from  an  ill  root.  I  will  let  you  all  know  that  I  loved 
Hauskuld  more  than  my  own  sons,  and  when  I  heard  that  he  was 
slain,  methought  the  sweetest  light  of  my  eyes  was  quenched,  and 
I  would  rather  have  lost  all  my  sons,  and  that  he  were  alive.  Now 
I  ask  thee.  Hall  of  the  Side,  and  thee  Runolf  of  the  Dale,  and  thee 
Hjallti,  Skeggi's  son,  and  thee  Einar  of  Thvera,  and  thee  Hafr  the 


164  GENERAL   LITERATURE  [Pabt  I. 

Wise,  that  I  may  be  allowed  to  make  an  atonement  for  the  slaying 
of  Hauskuld  on  my  sons'  behalf ;  and  I  wish  that  those  men  who 
are  best  fitted  to  do  so  shall  utter  the  award.'' 

Gizur,  and  Hafr,  and  Einar,  spoke  each  on  their  own  part, 
and  prayed  Flosi  to  take  an  atonement,  and  promised  him  their 
friendship  in  return. 

Flosi  answered  them  well  in  all  things,  but  still  did  not  give 
his  word. 

Then  Hall  of  the  Side  said  to  Flosi,  "Wilt  thou  now  keep  thy 
word,  and  grant  me  my  boon  which  thou  hast  already  promised 
me,  when  I  put  beyond  sea  Thorgrim,  the  son  of  Kettle  the  Fat, 
thy  kinsman,  when  he  had  slain  Halli  the  Red."  . 

"  I  will  grant  it  thee,  father-in-law,"  said  Flosi,  "  for  that  alone 
wilt  thou  ask  which  will  make  my  honour  greater  than  it  erewhile 
was." 

*'  Then,"  said  Hall,  "  my  wish  is  that  thou  shouldst  be  quickly 
atoned,  and  lettest  good  men  and  true  make  an  award,  and  so  buy 
the  friendship  of  good  and  worthy  men." 

"  I  will  let  you  all  know,"  said  Flosi,  "  that  I  will  do  according 
to  the  word  of  Hall,  my  father-in-law,  and  other  of  the  worthiest 
men,  that  he  and  others  of  the  best  men  on  each  side,  lawfully 
named,  shall  make  this  award.  Methinks  Njal  is  worthy  that  I 
should  grant  him  this." 

Njal  thanked  him  and  all  of  them,  and  others  who  were  by 
thanked  them  too,  and  said  that  Flosi  had  behaved  well. 

Then  Flosi  said,  "  Now  will  I  name  my  daysmen :  ^  First,  I 
name  Hall,  my  father-in-law;  Auzur  from  Broadwater;  Surt, 
Asbjorn's  son  of  Kirkby ;  Modolf,  Kettle's  son  "  —  he  dwelt  then 
at  Asar  —  "  Hafr  the  Wise ;  and  Runolf  of  the  Dale ;  and  it  is 
scarce  worth  while  to  say  that  these  are  the  fittest  men  out  of 
all  my  company." 

Now  he  bade  Njal  to  name  his  daysmen,  and  then  Njal  stood 
up,  and  said,  "  First  of  these  I  name,  Asgrim,  Ellidagrim's  son ; 
and  Hjallti,  Skeggi's  son ;  Gizur  the  White ;  Einar  of  Thvera ; 
Snorri  the  Priest ;   and  Gudmund  the  Powerful." 

After  that  Njal  and  Flosi,  and  the  sons  of  Sigfus  shook  hands^ 
and  Njal  pledged  his  hand  on  behalf  of  all  his  sons,  and  of  Kari, 

1  The  true  English  word  for  "arbitrator,"  or  "umpire."  See  Job 
ix.  33  —  "Neither  is  there  any  daysman  betwixt  us,  that  might  lay  his 
hand  upon  us  both."  See  also  Holland's  "Translation  of  Livy,"  page 
137  —  "A  more  shameful  precedent  for  the  time  to  come :  namely,  that 
umpires  and  daies-men  should  convert  the  thing  in  suit  unto  their  own 
and  proper  vantage." 


Chap.  VI.]  NJALS  SAGA    .  165 

his  son-in-law,  that  they  would  hold  to  what  those  twelve  men 
doomed ;  and  one  might  say  that  the  whole  body  of  men  at  the 
Thing  was  glad  at  that. 

Then  men  were  sent  after  Snorri  and  Gudmund,  for  they  were  in 
their  booths. 

Then  it  was  given  out  that  the  judges  in  this  award  would  sit 
in  the  Court  of  Laws,  but  all  the  others  were  to  go  away. 

122.   OF  THE  JUDGES 

Then  Snorri  the  Priest  spoke  thus,  "  Now  are  we  here  twelve 
judges  to  whom  these  suits  are  handed  over,  now  I  will  beg  you 
all  that  we  may  have  no  stumblingblocks  in  these  suits,  so  that 
they  may  not  be  atoned." 

"  Will  ye,"  said  Gudmund,  "  award  either  the  lesser  or  the  greater 
outlawry  ?  Shall  they  be  banished  from  the  district,  or  from  the 
whole  land?  " 

"  Neither  of  them,"  says  Snorri,  "  for  those  banishments  are 
often  ill  fulfilled,  and  men  have  been  slain  for  that  sake,  and 
atonements  broken,  but  I  will  award  so  great  a  money  fine  that  no 
man  shall  have  had  a  higher  price  here  in  the  land  than  Hauskuld." 

They  all  spoke  well  of  his  words. 

Then  they  talked  over  the  matter,  and  could  not  agree  which 
should  first  utter  how  great  he  thought  the  fine  ought  to  be,  and 
so  the  end  of  it  was  that  they  cast  lots,  and  the  lot  fell  on  Snorri 
to  utter  it. 

Then  Snorri  said,  "  I  will  not  sit  long  over  this,  I  will  now  tell 
you  what  my  utterance  is,  I  will  let  Hauskuld  be  atoned  for  with 
triple  manfines,  but  that  is  six  hundred  in  silver.  Now  ye  shall 
change  it,  if  ye  think  it  too  much  or  too  little." 

They  said  that  they  would  change  it  in  nothing. 

"  This  too  shall  be  added,"  he  said,  "  that  all  the  money  shall 
be  paid  down  here  at  the  Thing." 

Then  Gizur  the  White  spoke  and  said,  "  Methinks  that  can 
hardly  be,  for  they  will  not  have  enough  money  to  pay  their 
fines." 

"  I  know  what  Snorri  wishes,"  said  Gudmund  the  Powerful,  "  he 
wants  that  all  we  daysmen  should  give  such  a  sum  as  our  bounty 
will  bestow,  and  then  many  will  do  as  we  do." 

Hall  of  the  Side  thanked  him,  and  said  he  would  willingly  give 
as  much  as  any  one  else  gave,  and  then  all  the  other  daysmen 
agreed  to  that. 


166  GENERAL   LITERATURE  [Part  I. 

After  that  they  went  away,  and  settled  between  them  that  Hall 
should  utter  the  award  at  the  Hill  of  Laws. 

So  the  bell  was  rung,  and  all  men  went  to  the  Hill  of  Laws,  and 
Hall  of  the  Side  stood  up  and  spoke,  "  In  this  suit,  in  which  we 
have  come  to  an  award,  we  have  been  all  well  agreed,  and  we  have 
awarded  six  hundred  in  silver,  and  half  this  sum  we  the  daysmen  ^ 
will  pay,  but  it  must  all  be  paid  up  here  at  the  Thing.  But  it  is  my 
prayer  to  all  the  people  that  each  man  will  give  something  for 
God's  sake." 

All  answered  well  to  that,  and  then  Hall  took  witness  to  the 
award,  that  no  one  should  be  able  to  break  it. 

Njal  thanked  them  for  their  award,  but  Skarphedinn  stood  by, 
and  held  his  peace,  and  smiled  scornfully. 

Then  men  went  from  the  Hill  of  Laws  and  to  their  booths,  but 
the  daysmen  gathered  together  in  the  freemen's  churchyard  the 
money  which  they  had  promised  to  give. 

Njal's  sons  handed  over  that  money  which  they  had  by  them, 
and  Kari  did  the  same,  and  that  came  to  a  hundred  in  silver. 

Njal  took  out  that  money  which  he  had  with  him,  and  that 
was  another  hundred  in  silver. 

So  this  money  was  all  brought  before  the  Hill  of  Laws,  and  then 
men  gave  so  much,  that  not  a  penny  was  wanting. 

Then  Njal  took  a  silken  scarf  and  a  pair  of  boots  and  laid  them 
on  the  top  of  the  heap. 

After  that,  Hall  said  to  Njal,  that  he  should  go  to  fetch  his 
sons,  "But  I  will  go  for  Flosi,  and  now  each  must  give  the  other 
pledges  of  peace." 

Then  Njal  Vent  home  to  his  booth,  and  spoke  to  his  sons  and 
said,  "  Now  are  our  suits  come  into  a  fair  way  of  settlement,  now 
are  we  men  atoned,  for  all  the  money  has  been  brought  together  in 
one  place ;  and  now  either  side  is  to  go  and  grant  the  other  peace 
and  pledges  of  good  faith.  I  will  therefore  ask  you  this,  my  sons, 
not  to  spoil  these  things  in  any  way." 

Skarphedinn  stroked  his  brow,  and  smiled  scornfully.  So  they 
all  go  to  the  Court  of  Laws. 

Hall  went  to  meet  Flosi  and  said,  "  Go  thou  now  to  the  Court  of 
Laws,  for  now  all  the  money  has  been  bravely  paid  down,  and  it 
has  been  brought  together  in  one  place." 

Then  Flosi  bade  the  sons  of  Sigfus  to  go  up  with  him,  and  they 
all  went  out  of  their  booths.     They  came  from  the  east,  but  Njal 
went  from  the  west  to  the  Court  of  Laws,  and  his  sons  with  him. 
1  [Cf.  "  The  Iliad,"  Bk.  XVIII,  supra.] 


Chap.  VI.]  NJALS   SAGA  167 

Skarphedinn  went  to  the  middle  bench  and  stood  there. 

Flosi  went  into  the  Court  of  Laws  to  look  closely  at  the  money, 
and  said,  "  This  money  is  both  great  and  good,  and  well  paid  down, 
as  was  to  be  looked  for." 

After  that  he  took  up  the  scarf,  and  waved  it,  and  asked,  "Who 
may  have  given  this?" 

But  no  man  answered  him. 

A  second  time  he  waved  the  scarf,  and  asked,  "Who  may  have 
given  this?"  and  laughed,  but  no  man  answered  him. 

Then  Flosi  said,  "  How  is  it  that  none  of  you  knows  who  has 
owned  this  gear,  or  is  it  that  none  dares  to  tell  me?" 

"Who?"  said  Skarphedinn,  "dost  thou  think,  has  given  it?" 

"If  thou  must  know,"  said  Flosi,  "then  I  will  tell  thee ;  I  think 
that  thy  father  the  '  Beardess  Carle '  must  have  given  it,  for  many 
know  not  who  look  at  him  whether  he  is  more  a  man  than  a 
woman." 

"Such  words  are  ill-spoken,"  said  Skarphedinn,  "to  make  game 
of  him,  an  old  man,  and  no  man  of  any  worth  has  ever  done  so 
before.  Ye  may  know,  too,  that  he  is  a  man,  for  he  has  had  sons 
by  his  wife,  and  few  of  our  kinsfolk  have  fallen  unatoned  by  our 
house,  so  that  we  have  not  had  vengeance  for  them." 

Then  Skarphedinn  took  to  himself  the  silken  scarf,  but  threw  a 
pair  of  blue  breeks  to  Flosi,  and  said  he  would  need  them  more. 

"Why,"  said  Flosi,  "should  I  need  these  more?" 

"Because,"  said  Skarphedinn,  "thou  art  the  sweetheart  of  the 
Swinefell's  goblin,  if,  as  men  say,  he  does  indeed  turn  thee  into  a 
woman  every  ninth  night." 

Then  Flosi  spurned  the  money,  and  said  he  would  not  touch  a 
penny  of  it,  and  then  he  said  he  would  only  have  one  of  two  things  : 
either  that  Hauskuld  should  fall  unatoned,  or  they  would  have 
vengeance  for  him. 

Then  Flosi  would  neither  give  nor  take  peace,  and  he  said  to 
the  sons  of  Sigfus,  "  Go  we  now  home ;  one  fate  shall  befall  us  all." 

Then  they  went  home  to  their  booth,  and  Hall  said,  "  Here  most 
unlucky  men  have  a  share  in  this  suit." 

Njal  and  his  sons  went  home  to  their  booth,  and  Njal  said, 
"Now  comes  to  pass  what  my  heart  told  me  long  ago,  that  this 
suit  would  fall  heavy  on  us." 

"Not  so,"  says  Skarphedinn ;  "they  can  never  pursue  us  by  the 
laws  of  the  land." 

"Then  that  will  happen,"  says  Njal,  "which  will  be  worse  for 
all  of  us." 


168  GENERAL   LITERATURE  '  [Part  I. 

Those  men  who  had  given  the  money  spoke  about  it,  and  said 
that  they  should  take  it  back;  but  Gudmund  the  Powerful  said, 
*'  That  shame  I  will  never  choose  for  myself,  to  take  back  what  I 
have  given  away,  either  here  or  elsewhere." 

"That  is  well  spoken,"  they  said;  and  then  no  one  would  take 
it  back. 

Then  Snorri  the  Priest  said,  "My  counsel  is,  that  Gizur  the 
White  and  Hjallti,  Skeggi's  son  keep  the  money  till  the  next 
Althing ;  my  heart  tells  me  that  no  long  time  will  pass  ere  there 
may  be  need  to  touch  this  money." 

Hjallti  took  half  the  money  and  kept  it  safe,  but  Gizur  took  the 
rest. 

Then  men  went  home  to  their  booths. 

123.   AN  ATTACK  PLANNED   ON  NJAL  AND   HIS  SONS 

Flosi  summoned  all  his  men  up  to  the  "Great  Rift,"  and  went 
thither  himself. 

So  when  all  his  men  were  come,  there  were  one  hundred  and 
twenty  of  them. 

Then  Flosi  spake  thus  to  the  sons  of  Sigfus,  "  In  what  way  shall  I 
stand  by  you  in  this  quarrel,  which  will  be  most  to  your  minds?" 

"Nothing  will  please  us,"  said  Gunnar,  Lambi's  son,  "until 
those  brothers,  Njal's  sons,  are  all  slain." 

"This,"  said  Flosi,  "will  I  promise  to  you,  ye  sons  of  Sigfus, 
not  to  part  from  this  quarrel  before  one  of  us  bites  the  dust  before 
the  other.  I  will  also  know  whether  there  be  any  man  here  who 
will  not  stand  by  us  in  this  quarrel  ?  " 

But  they  all  said  they  would  stand  by  him. 

Then  Flosi  said,  "Come  now  all  to  me,  and  swear  an  oath  that 
no  man  will  shrink  from  this  quarrel." 

Then  all  went  up  to  Flosi  and  swore  oaths  to  him ;  and  then 
Flosi  said,  "  We  will  all  of  us  shake  hands  on  this,  that  he  shall 
have  forfeited  life  and  land  who  quits  this  quarrel  ere  it  be 
over." 

These  were  the  chiefs  who  were  with  Flosi :  —  Kol  the  son  of 
Thorstein  Broadpaunch,  the  brother's  son  of  Hall  of  the  Side, 
Hroald,  Auzur's  son  from  Broadwater,  Auzur  son  of  Aunund 
Wallet-back,  Thorstein  the  Fair,  the  son  of  Gerleif,  Glum,  Hilldir's 
son,  Modolf,  Kettle's  son,  Thorir  the  son  of  Thord  Illugi's  son  of 
Mauratongue,  Kolbein  and  Egil  Flosi's  kinsmen.  Kettle,  Sigfus' 
son,  and  Mord  his  brother,  Ingialld  of  the  Springs,  Thorkel  and 


Chap.  VI.]  NJALS  SAGA  169 

Lambi,  Grani,  Gunnar's  son,  Gunnar,  Lambi^s  son,  and  Sigmund, 
Sigfus'  son,  and  Hroar  from  Hromundstede. 

Then  Flosi  said  to  the  sons  of  Sigfus,  "  Choose  ye  now  a  leader, 
whomsoever  ye  think  best  fitted ;  for  some  one  man  must  needs 
be  chief  over  the  quarrel." 

Then  Kettle  of  the  Mark  answered,  "  If  the  choice  is  to  be  left 
with  us  brothers,  then  we  will  soon  choose  that  this  duty  should 
fall  on  thee ;  there  are  many  things  which  lead  to  this.  Thou  art 
a  man  of  great  birth,  and  a  mighty  chief,  stout  of  heart,  and  strong 
of  body,  and  wise  withal,  and  so  we  think  it  best  that  thoushouldst 
see  to  all  that  is  needful  in  the  quarrel." 

"It  is  most  fitting,"  said  Flosi,  "that  I  should  agree  to  undertake 
this  as  your  prayer  asks;  and  now  I  will  lay  down  the  course 
which  we  shall  follow,  and  my  counsel  is,  that  each  man  ride  home 
from  the  Thing  and  look  after  his  household  during  the  summer, 
so  long  as  men's  haymaking  lasts.  I,  too,  will  ride  home,  and  be 
at  home  this  summer ;  but  when  that  Lord's  day  comes  on  which 
winter  is  eight  weeks  off,  then  I  will  let  them  sing  me  a  mass  at 
home,  and  afterwards  ride  west  across  Loomnips  Sand  ;  each  of  our 
men  shall  have  two  horses.  I  will  not  swell  our  company  beyond 
those  which  have  now  taken  the  oath,  for  we  have  enough  and  to 
spare  if  all  keep  true  tryst.  I  will  ride  all  the  Lord's  day  and  the 
night  as  well,  but  at  even  on  the  second  day  of  the  week,  I  shall 
ride  up  to  Threecorner  ridge  about  mid-even.  There  shall  ye 
then  be  all  come  who  have  sworn  an  oath  in  this  matter.  But  if 
there  be  any  one  who  has  not  come,  and  who  has  joined  us  in  this 
quarrel,  then  that  man  shall  lose  nothing  save  his  life,  if  we  may 
have  our  way." 


Njal  rode  home  from  the  Thing  and  his  sons.  They  were  at 
home  that  summer.  Njal  asked  Kari  his  son-in-law  whether  he 
thought  at  all  of  riding  east  to  Dyrholms  to  his  own  house. 

"I  will  not  ride  east,"  answered  Kari,  "for  one  fate  shall  befall 
me  and  thy  sons." 

Njal  thanked  him,  and  said  that  was  only  what  was  likely  from 
him.  There  were  nearly  thirty  fighting  men  in  Njal's  house, 
reckoning  the  house-carles. 


There  was  a  carline  at  Bergthorsknoll,  whose  name  was  Saevuna. 
She  was  wise  in  many  things,  and  foresighted ;   but  she  was  then 


170  GENERAL  LITERATURE  [Part  I. 

very  old,  and  Njal's  sons  called  her  an  old  dotard,  when  she  talked 
so  much,  but  still  some  things  which  she  said  came  to  pass.  It 
fell  one  day  that  she  took  a  cudgel  in  her  hand,  and  went  up 
above  the  house  to  a  stack  of  vetches.  She  beat  the  stack  of 
vetches  with  her  cudgel,  and  wished  it  might  never  thrive,  "Wretch 
that  it  was  ! " 

Skarphedinn  laughed  at  her,  and  asked  why  she  was  so  angry 
with  the  vetch  stack. 

"This  stack  of  vetches,"  said  the  carline,  "will  be  taken  and 
lighted  with  fire  when  Njal  my  master  is  burnt,  house  and  all, 
and  Bergthora  my  foster-child.  Take  it  away  to  the  water, 
or  burn  it  up  as  quick  as  you  can." 

"We  will  not  do  that,"  says  Skarphedinn,  "for  something  else 
will  be  got  to  light  a  fire  with,  if  that  were  foredoomed,  though 
this  stack  were  not  here." 

The  carline  babbled  the  whole  summer  about  the  vetch-stack 
that  it  should  be  got  indoors,  but  something  always  hindered  it. 


127.  THE  ONSLAUGHT  1  ON  BERGTHORSKNOLL 

Now  Flosi  speaks  to  his  men,  "Now  we  will  ride  to  Bergthors- 
knoll,  and  come  thither  before  supper-time." 

They  do  so.  There  was  a  dell  in  the  knoll,  and  they  rode  thither, 
and  tethered  their  horses  there,  and  stayed  there  till  the  evening 
was  far  spent. 

Then  Flosi  said,  "  Now  we  will  go  straight  up  to  the  house,  and 
keep  close,  and  walk  slow,  and  see  what  counsel  they  will  take." 

Njal  stood  out  of  doors,  and  his  sons,  and  Kari  and  all  the 
serving-men,  and  they  stood  in  array  to  meet  them  in  the  yard, 
and  they  were  near  thirty  of  them. 

Flosi  halted  and  said,  "Now  we  shall  see  what  counsel  they 
take,  for  it  seems  to  me,  if  they  stand  out  of  doors  to  meet  us,  as 
though  we  should  never  get  the  mastery  over  them." 

"Then  is  our  journey  bad,"  says  Grani,  Gunnar's  son,  "if  we 
are  not  to  dare  to  fall  on  them." 

"Nor  shall  that  be,"  says  Flosi;  "for  we  will  fall  on  them 
though  they  stand  out  of  doors ;  but  we  shall  pay  that  penalty, 
that  many  will  not  go  away  to  tell  which  side  won  the  day." 

Njal  said  to  his  men,  "  See  ye  now  what  a  great  band  of  men  they 

have." 

1  The  Icelandic  word  is  "heims6kn,"  a  term  which  still  lingers  in  the 
grave  offence  known  in  Scottish  law  as  "hamesucken." 


Chap.  VI.]  NJALS   SAGA  171 

"They  have  both  a  great  and  well-knit  band,"  says  Skarp- 
hedinn;  "but  this  is  why  they  make  a  halt  now,  because  they 
think  it  will  be  a  hard  struggle  to  master  us." 

"That  cannot  be  why  they  halt,"  says  Njal;  "and  my  will  is 
that  our  men  go  indoors,  for  they  had  hard  work  to  master  Gunnar 
of  Lithend,  though  he  was  alone  to  meet  them ;  but  here  is  a 
strong  house  as  there  was  there,  and  they  will  be  slow  to  come  to 
close  quarters." 

"This  is  not  to  be  settled  in  that  wise,"  says  Skarphedinn,  "for 
those  chiefs  fell  on  Gunnar's  house,  who  were  so  noble-minded, 
that  they  w^ould  rather  turn  back  than  burn  him,  house  and  all ; 
but  these  will  fall  on  us  at  once  with  fire,  if  they  cannot  get  at  us 
in  any  other  way,  for  they  will  leave  no  stone  unturned  to  get  the 
better  of  us ;  and  no  doubt  they  think,  as  is  not  unlikely,  that  it 
will  be  their  deaths  if  we  escape  out  of  their  hands.  Besides,  I 
am  unwilling  to  let  myself  be  stifled  indoors  like  a  fox  in  his  earth." 

"Now,"  said  Njal,  "as  often  it  happens,  my  sons,  ye  set  my 
counsel  at  naught,  and  show  me  no  honour,  but  when  ye  were 
younger  ye  did  not  so,  and  then  your  plans  were  better  furthered." 

"Let  us  do,"  said  Helgi,  "as  our  father  wills;  that  will  be  best 
for  us." 

"I  am  not  so  sure  of  that,"  says  Skarphedinn,  "for  now  he  is 
*  fey ' ;  but  still  I  may  well  humour  my  father  in  this,  by  being 
burnt  indoors  along  with  him,  for  I  am  not  afraid  of  my  death." 

Then  he  said  to  Kari,  "  Let  us  stand  by  one  another  well,  brother- 
in-law,  so  that  neither  parts  from  the  other." 

"That  I  have  made  up  my  mind  to  do,"  says  Kari ;  "but  if  it 
should  be  otherwise  doomed,  —  well !  then  it  must  be  as  it  must 
be,  and  I  shall  not  be  able  to  fight  against  it." 

"Avenge  us,  and  we  will  avenge  thee,"  says  Skarphedinn,  "if 
we  live  after  thee." 

Kari  said  so  it  should  be. 

Then  they  all  went  in,  and  stood  in  array  at  the  door. 

"  Now  are  they  all  *  fey,' ''  said  Flosi,  "  since  they  have 
gone  indoors,  and  we  will  go  right  up  to  them  as  quickly  as  we  can, 
and  throng  as  close  as  we  can  before  the  door,  and  give  heed  that 
none  of  them,  neither  Kari  nor  Njal's  sons,  get  away ;  for  that 
were  our  bane." 

So  Flosi  and  his  men  came  up  to  the  house,  and  set  men  to  watch 
round  the  house,  if  there  were  any  secret  doors  in  it.  But  Flosi 
went  up  to  the  front  of  the  house  with  his  men. 

Then  Hroald,  Auzur's  son  ran  up  to  where  Skarphedinn  stood, 


172  GENERAL  LITERATURE  [Part  I. 

and  thrust  at  him.  Skarphedinn  hewed  the  spearhead  off  the 
shaft  as  he  held  it,  and  made  another  stroke  at  him,  and  the  axe 
fell  on  the  top  of  the  shield,  and  dashed  back  the  whole  shield 
on  Hroald's  body,  but  the  upper  horn  of  the  axe  caught  him  on 
the  brow,  and  he  fell  at  full  length  on  his  back,  and  was  dead  at 
once. 

"Little  chance  had  that  one  with  thee,  Skarphedinn,"  said  Kari, 
"and  thou  art  our  boldest." 

"I'm  not  so  sure  of  that,"  says  Skarphedinn,  and  he  drew  up  his 
lips  and  smiled. 

Kari,  and  Grim,  and  Helgi,  threw  out  many  spears,  and 
wounded  many  men ;  but  Flosi  and  his  men  could  do  nothing. 

At  last  Flosi  said,  "We  have  already  gotten  great  manscathe  in 
our  men  ;  many  are  wounded,  and  he  slain  whom  we  would  choose 
last  of  all.  It  is  now  clear  that  we  shall  never  master  them  with 
weapons ;  many  now  there  be  who  are  not  so  forward  in  fight  as 
they  boasted,  and  yet  they  were  those  w^ho  goaded  us  on  most. 
I  say  this  most  to  Grani,  Gunnar's  son,  and  Gunnar,  Lambi's  son 
who  were  the  least  willing  to  spare  their  foes.  But  still  we  shall 
have  to  take  to  some  other  plan  for  ourselves,  and  now  there  are 
but  two  choices  left,  and  neither  of  them  good.  One  is  to  turn 
away,  and  that  is  our  death ;  the  other,  is  set  fire  to  the  house,  and 
burn  them  inside  it;  and  that  is  a  deed  which  we  shall  have  ta 
answer  for  heavily  before  God,  since  we  are  Christian  men  our- 
selves ;  but  still  we  must  take  to  that  counsel." 

128.  NJAL'S  BURNING 

Now  they  took  fire,  and  made  a  great  pile  before  the  doors. 
Then  Skarphedinn  said,  "  What,  lads !  are  ye  lighting  a  fire,  or 
are  ye  taking  to  cooking?" 

"  So  it  shall  be,"  answered  Grani,  Gunnar's  son ;  "  and  thou  shalt 
not  need  to  be  better  done." 

"  Thou  repayest  me,"  said  Skarphedinn,  "  as  one  may  look  for 
from  the  man  that  thou  art.  I  avenged  thy  father,  and  thou 
settest  most  store  by  that  duty  which  is  farthest  from  thee." 

Then  the  women  threw  whey  on  the  fire,  and  quenched  it  as 
fast  as  they  lit  it.     Some,  too,  brought  water,  or  slops. 

Then  Kol,  Thorstein's  son  said  to  Flosi,  ''A  plan  comes  into  my 
mind ;  I  have  seen  a  loft  over  the  hall  among  the  cross-trees,  and 
we  will  put  the  fire  in  there,  and  light  it  with  the  vetch-stack  that 
stands  just  above  the  house." 


Chap.  VI.]  NJALS   SAGA  173 

Then  they  took  the  vetch-stack  and  set  fire  to  it,  and  they  who 
were  inside  were  not  aware  of  it  till  the  whole  hall  was  a-blaze 
over  their  heads. 

Then  Flosi  and  his  men  made  a  great  pile  before  each  of  the  doors, 
and  then  the  women  folk  who  were  inside  began  to  weep  and  to 
wail. 

Njal  spoke  to  them  and  said,  "  Keep  up  your  hearts,  nor  utter 
shrieks,  for  this  is  but  a  passing  storm,  and  it  will  be  long  before 
ye  have  another  such  ;  and  put  your  faith  in  God,  and  believe  that 
he  is  so  merciful  that  he  will  not  let  us  burn  both  in  this  world  and 
the  next." 

Such  words  of  comfort  had  he  for  them  all,  and  others  still  more 
strong. 

Now  the  whole  house  began  to  blaze.  Then  Njal  went  to  the 
door  and  said,  "  Is  Flosi  so  near  that  he  can  hear  my  voice  ?  " 

Flosi  said  that  he  could  hear  it. 

"  Wilt  thou,"  said  Njal,  "  take  an  atonement  from  my  sons,  or 
allow  any  men  to  go  out  ?  " 

"  I  will  not,"  answers  Flosi,  ''  take  any  atonement  from  thy  sons, 
and  now  our  dealing  shall  come  to  an  end  once  for  all,  and  I  will 
not  stir  from  this  spot  till  they  are  all  dead ;  but  I  will  allow  the 
women  and  children  and  house-carles  to  go  out." 

Then  Njal  went  into  the  house,  and  said  to  the  folk,  "  Now 
all  those  must  go  out  to  whom  leave  is  given,  and  so  go  thou  out 
Thorhalla,  Asgrim's  daughter,  and  all  the  people  also  with  thee  who 
may." 

Then  Thorhalla  said,  "  This  is  another  parting  between  me  and 
Helgi  than  I  thought  of  a  while  ago ;  but  still  I  will  egg  on  my 
father  and  brothers  to  avenge  this  manscathe  which  is  wrought 
here." 

"  Go,  and  good  go  with  thee,"  said  Njal,  "  for  thou  art  a  brave 
woman." 

After  that  she  went  out  and  much  folk  with  her. 

Then  Astrid  of  Deepback  said  to  Helgi,  Njal's  son,  "  Come  thou 
out  with  me,  and  I  will  throw  a  woman's  cloak  over  thee,  and  tie 
thy  head  with  a  kerchief." 

He  spoke  against  it  at  first,  but  at  last  he  did  so  at  the  prayer 
of  others. 

So  Astrid  wrapped  the  kerchief  round  Helgi 's  head,  but  Thor- 
hilda,  Skarphedinn's  wife,  threw  the  cloak  over  him,  and  he  went 
out  between  them,  and  then  Thorgerda,  NjaFs  daughter,  and  Helga 
her  sister,  and  many  other  folk  went  out  too. 


174  GENERAL   LITERATURE  [Part  I. 

But  when  Helgi  came  out  Flosi  said,  "  That  is  a  tall  woman 
and  broad  across  the  shoulders  that  went  yonder,  take  her  and 
hold  her/' 

But  when  Helgi  heard  that,  he  cast  away  the  cloak.  He  had 
got  his  sword  under  his  arm,  and  hewed  at  a  man,  and  the  blow 
fell  on  his  shield  and  cut  off  the  point  of  it,  and  the  man's  leg  as 
well.  Then  Flosi  came  up  and  hewed  at  Helgi 's  neck,  and  took  off 
his  head  at  a  stroke. 

Then  Flosi  went  to  the  door  and  called  out  to  Njal,  and  said  he 
would  speak  with  him  and  Bergthora. 

Now  Njal  does  so,  and  Flosi  said,  "  I  will  offer  thee,  master 
Njal,  leave  to  go  out,  for  it  is  unworthy  that  thou  shouldst  burn 
indoors." 

"  I  will  not  go  out,"  said  Njal,  "  for  I  am  an  old  man,  and  little 
fitted  to  avenge  my  sons,  but  I  will  not  live  in  shame." 

Then  Flosi  said  to  Bergthora,  "  Come  thou  out,  housewife,  for 
I  will  for  no  sake  burn  thee  indoors." 

"  I  was  given  away  to  Njal  young,"  said  Bergthora,  "  and  I  have 
promised  him  this,  that  we  would  both  share  the  same  fate." 

After  that  they  both  went  back  into  the  house. 

"  What  counsel  shall  we  now  take,"  said  Bergthora. 

"  We  will  go  to  our  bed,"  says  Njal,  "  and  lay  us  down ;  I  have 
long  been  eager  for  rest." 

Then  she  said  to  the  boy  Thord,  Kari's  son,  "  Thee  will  I  take 
out,  and  thou  shalt  not  burn  in  here." 

"  Thou  hast  promised  me  this,  grandmother,"  says  the  boy, 
"  that  we  should  never  part  so  long  as  I  wished  to  be  with  thee ; 
but  methinks  it  is  much  better  to  die  with  thee  and  Njal  than  to 
live  after  you." 

Then  she  bore  the  boy  to  her  bed,  and  Njal  spoke  to  his  steward 
and  said,  "  Now  thou  shalt  see  where  we  lay  us  down,  and  how  I 
lay  us  out,  for  I  mean  not  to  stir  an  inch  hence,  whether  reek  or 
burning  smart  me,  and  so  thou  wilt  be  able  to  guess  where  to  look 
for  our  bones." 

He  said  he  would  do  so. 

There  had  been  an  ox  slaughtered  and  the  hide  lay  there.  Njal 
told  the  steward  to  spread  the  hide  over  them,  and  he  did  so. 

So  there  they  lay  down  both  of  them  in  their  bed,  and  put  the 
boy  between  them.  Then  they  signed  themselves  and  the  boy 
with  the  cross,  and  gave  over  their  souls  into  God's  hand,  and  that 
was  the  last  word  that  men  heard  them  utter. 

Then  the  steward  took  the  hide  and  spread  it  over  them,  and 


Chap.  VI.]  NJALS  SAGA  175 

went  out  afterwards.  Kettle  of  the  Mark  caught  hold  of  him, 
and  dragged  him  out,  he  asked  carefully  after  his  father-in-law 
Njal,  but  the  steward  told  him  the  whole  truth.  Then  Kettle 
said,  "  Great  grief  hath  been  sent  on  us,  when  we  have  had  to  share 
such  ill-luck  together." 

Skarphedinn  saw  how  his  father  laid  him  down,  and  how  he 
laid  himself  out,  and  then  he  said,  "  Our  father  goes  early  to  bed, 
and  that  is  what  was  to  be  looked  for,  for  he  is  an  old  man." 

Then  Skarphedinn,  and  Kari,  and  Grim,  caught  the  brands  as 
fast  as  they  dropped  down,  and  hurled  them  out  at  them,  and  so  it 
went  on  awhile.  Then  they  hurled  spears  in  at  them,  but  they 
caught  them  all  as  they  flew,  and  sent  them  back  again. 

Then  Flosi  bade  them  cease  shooting,  "  for  all  feats  of  arms  will 
go  hard  with  us  when  we  deal  with  them ;  ye  may  well  wait  till 
the  fire  overcomes  them." 

So  they  do  that,  and  shoot  no  more. 

Then  the  great  beams  out  of  the  roof  began  to  fall,  and  Skarp- 
hedinn said,  ^*  Now  must  my  father  be  dead,  and  I  have  neither 
heard  groan  nor  cough  from  him." 

Then  they  went  to  the  end  of  the  hall,  and  there  had  fallen  down 
a  cross-beam  inside  which  was  much  burnt  in  the  middle. 

Kari  spoke  to  Skarphedinn,  and  said,  "Leap  thou  out  here,  and 
I  will  help  thee  to  do  so,  and  I  will  leap  out  after  thee,  and  then  we 
shall  both  get  away  if  we  set  about  it  so,  for  hitherward  blows 
all  the  smoke." 

"  Thou  shalt  leap  first,"  said  Skarphedinn ;  "  but  I  will  leap 
straightway  on  thy  heels." 

"  That  is  not  wise,"  says  Kari,  "  for  I  can  get  out  well  enough 
elsewhere,  though  it  does  not  come  about  here." 

"  I  will  not  do  that,"  says  Skarphedinn;  "leap  thou  out  first, 
but  I  will  leap  after  thee  at  once." 

"  It  is  bidden  to  every  man,"  says  Kari,  "  to  seek  to  save  his  life 
while  he  has  a  choice,  and  I  will  do  so  now ;  but  still  this  parting  of 
ours  will  be  in  such  wise  that  we  shall  never  see  one  another' more ; 
for  if  I  leap  out  of  the  fire,  I  shall  have  no  mind  to  leap  back  into 
the  fire  to  thee,  and  then  each  of  us  will  have  to  fare  his  own 
way." 

"  It  joys  me,  brother-in-law,"  says  Skarphedinn,  "  to  think  that 
if  thou  gettest  away  thou  wilt  avenge  me." 

Then  Kari  took  up  a  blazing  bench  in  his  hand,  and  runs  up 
along  the  cross-beam,  then  he  hurls  the  bench  out  at  the  roof,  and 
it  fell  among  those  who  were  outside. 


176  GENERAL   LITERATURE  [Pabt  I. 

Then  they  ran  away,  and  by  that  time  all  Kari's  upper  clothing 
and  his  hair  were  a-blaze,  then  he  threw  himself  down  from  the 
roof,  and  so  crept  along  with  the  smoke. 

Then  one  man  said  who  was  nearest,  "Was  that  a  man  that 
leapt  out  at  the  roof?" 

"  Far  from  it,"  says  another ;  "  more  likely  it  was  Skarphedinn 
who  hurled  a  firebrand  at  us." 

After  that  they  had  no  more  mistrust. 

Kari  ran  till  he  came  to  a  stream,  and  then  he  threw  himself 
down  into  it,  and  so  quenched  the  fire  on  him. 

After  that  he  ran  along  under  shelter  of  the  smoke  into  a  hollow, 
and  rested  him  there,  and  that  has  since  been  called  Kari's  Hollow^. 

129.   SKARPHEDINN'S  DEATH 

:)c  *  *  *  *  *  * 

133.   OF  FLOSI'S  JOURNEY  AND   HIS  ASKING  FOR   HELP 

After  that  they  busked  them  from  home  all  together.  Flosi 
was  in  long-hose  because  he  meant  to  go  on  foot,  and  then  he  knew 
that  it  would  seem  less  hard  to  the  others  to  walk. 

Then  they  fared  from  home  to  Knappvale,  but  the  evening  after 
to  Broadwater,  and  then  to  Calffell,  thence  by  Bjornness  to  Horn- 
firth,  thence  to  Staffell  in  Lon,  and  then  to  Thvattwater  to  Hall 
of  the  Side. 

Flosi  had  to  wife  Stein vora,  his  daughter. 

Hall  gave  them  a  very  hearty  welcome,  and  Flosi  said  to  Hall,  "  I 
will  ask  thee,  father-in-law,  that  thou  wouldst  ride  to  the  Thing 
with  me  with  all  thy  Thingmen." 

"  Now,"  answered  Hall,  ''  it  has  turned  out  as  the  saw  says,. 
'  but  a  short  while  is  hand  fain  of  blow ' ;  and  yet  it  is  one  and  the 
same  man  in  thy  band  who  now  hangs  his  head,  and  who  then 
goaded  thee  on  to  the  worst  of  deeds  when  it  was  still  undone. 
But  my  help  I  am  bound  to  lend  thee  in  all  such  places  as  I 
may." 

"What  counsel  dost  thou  give  me,"  said  Flosi,  "in  the  strait 
in  which  I  now  am." 

"  Thou  shalt  fare,"  said  Hall,  "  north,  right  up  to  Weaponfirth, 
and  ask  all  the  chiefs  for  aid,  and  thou  wilt  yet  need  it  all  before 
the  Thing  is  over." 


Chap.  VI.]  NJALS  SAGA  177 

134.   OF  THORHALL  AND   KARI 

Thorhall,  Asgrim's  son,  and  Kari,  Solmund's  son,  rode  one  day  to 
Mossfell  to  see  Gizur  the  White ;  he  took  them  with  both  hands, 
and  there  they  were  at  his  house  a  very  long  while.  Once  it 
happened  as  they  and  Gizur  talked  of  Njal's  burning,  that  Gizur 
said  it  was  very  great  luck  that  Kari  had  got  away.  Then  a  song 
came  into  Kari's  mouth. 

"  I  who  whetted  helmet-hewer/ 
I  who  oft  have  burnished  brand, 
From  the  fray  went  all  unwilling 
When  Njal's  roof  tree  crackling  roared ;  « 

Out  I  leapt  when  bands  of  spearmen 
Lighted  there  a  blaze  of  flame ! 
Listen  men  unto  my  moaning, 
Mark  the  telling  of  my  grief." 

Then  Gizur  said,  "It  must  be  forgiven  thee  that  thou  art  mindful, 
and  so  we  will  talk  no  more  about  it  just  now." 

Kari  says  that  he  will  ride  home ;  and  Gizur  said,  "  I  will  now 
make  a  clean  breast  of  my  counsel  to  thee.  Thou  shalt  not  ride 
home,  but  still  thou  shalt  ride  away,  and  east  under  Eyjafell,  to 
see  Thorgeir  Craggeir,  and  Thorleif  Crow.  They  shall  ride  from 
the  east  with  thee.  They  are  the  next  of  kin  in  the  suit,  and  with 
them  shall  ride  Thorgrim  the  Big,  their  brother.  Ye  shall  ride 
to  Mord,  Valgard's  son's  house,  and  tell  him  this  message  from  me, 
that  he  shall  take  up  the  suit  for  manslaughter  for  Helgi,  Njal's  son 
against  Flosi.  But  if  he  utters  any  words  against  this,  then  shalt 
thou  make  thy  self  most  wrathful,  and  make  believe  as  though 
thou  wouldst  let  thy  axe  fall  on  his  head ;  and  in  the  second  place, 
thou  shalt  assure  him  of  my  wrath  if  he  shows  any  ill  will.  Along 
with  that  shalt  thou  say,  that  I  will  send  and  fetch  away  my 
daughter  Thorkatla,  and  make  her  come  home  to  me ;  but  that  he 
will  not  abide,  for  he  loves  her  as  the  very  eyes  in  his  head." 

Kari  thanked  him  for  his  counsel.  Kari  spoke  nothing  of  help 
to  him,  for  he  thought  he  would  show  himself  his  good  friend  in 
this  as  in  other  things. 

Thence  Kari  rode  east  over  the  rivej-s,  and  so  to  Fleetlithe, 
and  east  across  Markfleet,  and  so  on  to  SeHalandsmull.  So  they 
ride  east  to  Holt. 

Thorgeir  welcomed  them  with  the  greatest  kindliness.  He  told 
them  of  Flosi's  journey,  and  how  great  help  he  had  got  in  the  east 
firths. 

1  "Helmet-hewer,"  sword. 


178  GENERAL  LITERATURE  [Part  I. 

Kari  said  it  was  no  wonder  that  he,  who  had  to  answer  for  so 
much,  should  ask  for  help  for  himself. 

Then  Thorgeir  said,  "The  better  things  go  for  them,  the  worse 
it  shall  be  for  them;  we  will  only  follow  them  up  so  much  the 
harder." 

Kari  told  Thorgeir  of  Gizur's  advice.  After  that  they  ride  from 
the  east  to  Rangrivervale  to  Mord,  Valgard's  son's  house.  He 
gave  them  a  hearty  welcome.  Kari  told  him  the  message  of 
Gizur  his  father-in-law.  He  was  slow  to  take  the  duty  on  him, 
and  said  it  was  harder  to  go  to  law  with  Flosi  than  with  any  other 
ten  mei^. 

"  Thou  behavest  now  as  he  ^  thought,"  said  Kari ;  "for  thou  art 
a  bad  bargain  in  every  way ;  thou  art  both  a  coward  and  heartless, 
but  the  end  of  this  shall  be  as  is  fitting,  that  Thorkatla  shall  fare 
home  to  her  father." 

She  busked  her  at  once,  and  said  she  had  long  been  "  boun"  to 
part  from  Mord.  Then  he  changed  his  mood  and  his  words 
quickly,  and  begged  off  their  wrath,  and  took  the  suit  upon  him 
at  once. 

"Now,"  said  Kari,  *'thou  has  taken  the  suit  upon  thee,  see 
that  thou  pleadest  it  without  fear,  for  thy  life  lies  on  it." 

Mord  said  he  would  lay  his  whole  heart  on  it  to  do  this  well  and 
manfully. 

After  that  Mord  summoned  to  him  nine  neighbours,  they  were 
all  near  neighbours  to  the  spot  where  the  deed  was  done.  Then 
Mord  took  Thorgeir  by  the  hand  and  named  two  witnesses  to 
bear  witness,  "That  Thorgeir,  Thorir's  son  hands  me  over  a  suit  for 
manslaughter  against  Flosi,  Thord's  son,  to  plead  it  for  the  slaying 
of  Helgi,  Njal's  son,  with  all  those  proofs  which  have  to  follow  the 
suit.  Thou  handest  over  to  me  this  suit  to  plead  and  to  settle, 
and  to  enjoy  all  rights  in  it,  as  though  I  were  the  rightful  next  of 
kin.  Thou  handest  it  over  to  me  by  law,  and  I  take  it  from  thee 
by  law." 

A  second  time  Mord  named  his  witnesses,  "To  bear  witness," 
said  he,  "that  I  give  notice  of  an  assault  laid  down  by  law  against 
Flosi,  Thord's  son,  for  that  he  dealt  Helgi,  Njal's  son  a  brain,  or  a 
body,  or  a  marrow  wound,  which  proved  a  death  wound ;  and  from 
which  Helgi  got  his  death.  I  give  notice  of  this  before  five  wit- 
nesses" —  here  he  named  them  all  by  name  —  "I  give  this  lawful 
notice.  I  give  notice  of  a  suit  which  Thorgeir,  Thorir's  son  has 
handed  over  to  me." 

*  Gizur. 


Chap.  VI.]  NJALS   SAGA  179 

Again  he  named  witnesses  "To  bear  witness  that  I  give  notice 
of  a  brain,  or  a  body,  or  a  marrow  wound  against  Flosi,  Thord's 
son,  for  that  wound  which  proved  a  death  wound,  but  Helgi  got 
his  death  therefrom  on  such  and  such  a  spot,  when  Flosi,  Thord's 
son  first  rushed,  on  Helgi,  Njal's  son  with  an  assault  laid  down  by 
law.  I  give  notice  of  this  before  five  neighbours" — then  he 
named  them  all  by  name  —  "I  give  this  lawful  notice.  I  give 
notice  of  a  suit  which  Thorgeir,  Thorir's  son  has  handed  over  to 
me." 

Then  Mord  named  his  witnesses  again  "To  bear  witness," 
said  he,  "that  I  summon  these  nine  neighbours  who  dwell  nearest 
the  spot"  —  here  he  named  them  all  by  name  —  "to  ride  to  the 
Althing,  and  to  sit  on  the  inquest  to  find  whether  Flosi,  Thord's 
son  rushed  with  an  assault  laid  down  by  law  on  Helgi,  Njal's  son, 
on  that  spot  where  Flosi,  Thord's  son  dealt  Helgi,  Njal's  son  a 
brain,  or  a  body,  or  a  marrow  wound,  which  proved  a  death  wound, 
and  from  which  Helgi  got  his  death.  I  call  on  you  to  utter  all 
those  words  which  ye  are  bound  to  find  by  law,  and  which  I  shall 
call  on  you  to  utter  before  the  court,  and  which  belong  to  this 
suit ;  I  call  upon  you  by  a  lawful  summons  —  I  call  on  you  so 
that  ye  may  yourselves  hear  —  I  call  on  you  in  the  suit  which 
Thorgeir,  Thorir's  son  has  handed  over  to  me." 

Again  Mord  named  his  witnesses  "To  bear  witness,  that  I 
summon  these  nine  neighbours  who  dwell  nearest  to  the  spot  to 
ride  to  the  Althing,  and  to  sit  on  an  inquest  to  find  whether 
Flosi,  Thord's  son  wounded  Helgi,  Njal's  son  with  a  brain,  or  body, 
or  marrow  wound,  which  proved  a  death  wound,  and  from  which 
Helgi  got  his  death,  on  that  spot  where  Flosi,  Thord's  son  first 
rushed  on  Helgi,  Njal's  son  with  an  assault  laid  down  by  law.  I 
call  on  you  to  utter  all  those  words  which  ye  are  bound  to  find  by 
law,  and  which  I  shall  call  on  you  to  utter  before  the  court,  and 
which  belong  to  this  suit.  I  call  upon  you  by  a  lawful  summons  — 
I  call  on  you  so  that  ye  may  yourselves  hear  —  I  call  on  you  in 
the  suit  which  Thorgeir,  Thorir's  son  has  handed  over  to  me." 

Then  Mord  said,  "Now  is  the  suit  set  on  foot  as  ye  asked,  and 
now  I  will  pray  thee,  Thorgeir  Craggeir,  to  come  to  me  when 
thou  ridest  to  the  Thing,  and  then  let  us  both  ride  together, 
each  with  our  band,  and  keep  as  close  as  we  can  together,  for 
my  band  shall  be  ready  by  the  very  beginning  of  the  Thing, 
and  I  will  be  true  to  you  in  all  things." 

They  showed  themselves  well  pleased  at  that,  and  this  was  fast 
bound  by  oaths,  that  no  man  should  sunder  himself  from  another 


180  GENERAL   LITERATURE  [Part  I. 

till  Kari  willed  it,  and  that  each  of  theQi  should  lay  down  his  life 
for  the  other's  life.  Now  they  parted  with  friendship,  and  settled 
to  meet  again  at  the  Thing. 

Now  Thorgeir  rides  back  east,  but  Kari  rides  west  over  the 
rivers  till  he  came  to  Tongue,  to  Asgrim's  house.  He  welcomed 
them  wonderfully  well,  and  Kari  told  Asgrim  all  Gizur  the  White's 
plan,  and  of  the  setting  on  foot  of  the  suit. 

''I  looked  for  as  much  from  him,"  says  Asgrim,  ''that  he  would 
behave  well,  and  now  he  has  shown  it." 

Then  Asgrim  went  on,  "What  heardest  thou  from  the  east  of 
Flosi?" 

"He  went  east  all  the  way  to  Weaponfirth,"  answers  Kari, 
*'and  nearly  all  the  chiefs  have  promised  to  ride  with  him  to  the 
Althing,  and  to  help  him.  They  look,  too,  for  help  from  the 
Reykdalesmen,  and  the  men  of  Lightwater,  and  the  Axefirthers." 

Then  they  talked  much  about  it,  and  so  the  time  passes  away 
up  to  the  Althing. 

Thorhall,  Asgrim's  son  took  such  a  hurt  in  his  leg  that  the  foot 
above  the  ankle  w^as  as  big  and  swollen  as  a  woman's  thigh,  and  he 
could  not  walk  save  with  a  staff.  He  was  a  man  tall  in  growth, 
and  strong  and  powerful,  dark  of  hue  in  hair  and  skin,  measured 
and  guarded  in  his  speech,  and  yet  hot  and  hasty  tempered.  He 
was  the  third  greatest  lawyer  in  all  Iceland. 

Now  the  time  comes  that  men  should  ride  from  home  to  the 
Thing,  Asgrim  said  to  Kari,  "Thou  shalt  ride  at  the  very  be- 
ginning of  the  Thing,  and  fit  up  our  booths,  and  my  son  Thorhall 
with  thee.  Thou  wilt  treat  him  best  and  kindest,  as  he  is  footlame, 
but  we  shall  stand  in  the  greatest  need  of  him  at  this  Thing.  With 
you  two,  twenty  men  more  shall  ride." 

After  that  they  made  ready  for  their  journey,  and  then  they 
rode  to  the  Thing,  and  set  up  their  booths,  and  fitted  them  out 
well. 


137.   OF  EYJOLF,  BOLVERK'S  SON 

There  was  a  man  named  Eyjolf.  He  was  the  son  of  Bolverk, 
the  son  of.  Eyjolf  the  Guileful,  of  Otterdale.  Eyjolf  was  a  man  of 
great  rank,  and  best  skilled  in  law  of  all  men,  so  that  some  said  he 
was  the  third  best  lawyer  in  Iceland.  He  was  the  fairest  in  face  of 
all  men,  tall  and  strong,  and  there  was  the  making  of  a  great  chief 
in  him.'    He  was  greedy  of  money,  like  the  rest  of  his  kinsfolk. 


Chap.  VI.]  NJALS  SAGA  181 

One  day  Flosi  went  to  the  booth  of  BjarnI,  Broddhelgi's  son. 
Bjarni  took  him  by  both  hands,  and  sat  Flosi  down  by  his  side. 
They  talked  about  many  things,  and  at  last  Flosi  said  to  Bjarni, 
*'What  counsel  shall  we  now  take?" 

*^I  think,"  answered  Bjarni,  ''that  it  is  now  hard  to  say  what  to 
do,  but  the  wisest  thing  seems  to  me  to  go  round  and  ask  for  help, 
since  they  are  drawing  strength  together  against  you.  I  will  also 
ask  thee,  Flosi,  whether  there  be  any  very  good  lawyer  in  your 
band ;  for  now  there  are  but  two  courses  left ;  one  to  ask  if  they 
will  take  an  atonement,  and  that  is  not  a  bad  choice,  but  the 
other  is  to  defend  the  suit  at  law,  if  there  be  any  defence  to  it, 
though  that  will  seem  to  be  a  bold  course ;  and  this  is  why  I  think 
this  last  ought  to  be  chosen,  because  ye  have  hitherto  fared  high 
and  mightily,  and  it  is  unseemly  now  to  take  a  lower  course." 

''As  to  thy  asking  about  lawyers,"  said  Flosi,  "I  will  answer 
thee  at  once  that  there  is  no  such  man  in  our  band ;  nor  do  I  know 
where  to  look  for  one  except  it  be  Thorkel,  Geitir's  son,  thy  kins- 
man." 

"We  must  not  reckon  on  him,"  said  Bjarni,  "for  though  he 
knows  something  of  law,  he  is  far  too  wary,  and  no  man  need  hope 
to  have  him  as  his  shield  ;  but  he  will  back  thee  as  well  as  any  man 
who  backs  thee  best,  for  he  has  a  stout  heart ;  besides,  I  must  tell 
thee  that  it  will  be  that  man's  bane  who  undertakes  the  defence  in 
this  suit  for  the  burning,  but  I  have  no  mind  that  this  should  befall 
my  kinsman  Thorkel,  so  ye  must  turn  your  eyes  elsewhither." 

Flosi  said  he  knew  nothing  about  who  were  the  best  lawyers. 

"There  is  a  man  named  Eyjolf,"  said  Bjarni;  "he  is  Bolverk's 
son,  and  he  is  the  best  lawyer  in  the  Westfirther's  Quarter ;  but 
you  will  need  to  give  him  much  money  if  you  are  to  bring  him  into 
the  suit,  but  still  we  must  not  stop  at  that.  We  must  also  go 
with  our  arms  to  all  law  business,  and  be  most  wary  of  ourselves, 
but  not  meddle  with  them  before  we  are  forced  to  fight  for  our 
lives.  And  now  I  will  go  with  thee,  and  set  out  at  once  on  our 
begging  for  help,  for  now  methinks  the  peace  will  be  kept  but  a 
little  while  longer." 


Then  they  went  to  meet  Eyjolf,  and  hailed  him.  Eyjolf  knew 
Bjarni  at  once,  and  greeted  him  well.  Bjarni  took  Eyjolf  by  the 
hand,  and  led  him  up  into  the  "  Great  Rift."  Flosi's  and  Bjarni's 
men  followed  after,  and  Eyjolf's  men  went  also  with  him.  They 
bade  them  stay  upon  the  lower  brink  of  the  Rift,  and  look  about 


182  GENERAL   LITERATURE  [Part  !.■ 

them,  but  Flosi,  and  Bjarni,  and  Eyjolf  went  on  till  they  came  to 
where  the  path  leads  down  from  the  upper  brink  of  the  Rift. 

Flosi  said  it  was  a  good  spot  to  sit  down  there,  for  they  could 
see  around  them  far  and  'wide.  Then  they  sat  them  down  there. 
They  were  four  of  them  together,  and  no  more. 

Then  Bjarni  spoke  to  Eyjolf,  and  said,  *'Thee,  friend,  have  we 
come  to  see,  for  we  much  need  thy  help  in  every  way." 

''Now,"  said  Eyjolf,  ''there  is  good  choice  of  men  here  at  the 
Thing,  and  ye  will  not  find  it  hard  to  fall  on  those  who  will  be  a 
much  greater  strength  to  you  than  I  can  be." 

"Not  so,"  said  Bjarni,  "thou  hast  many  things  which  show  that 
there  is  no  greater  man  than  thou  at  the  Thing ;  first  of  all,  that 
thou  art  so  well-born,  as  all  those  men  are  who  are  sprung  from 
Ragnar  Hairybreeks ;  thy  forefathers,  too,  have  always  stood  first 
in  great  suits,  both  here  at  the  Thing,  and  at  home  in  their  own 
country,  and  they  have  always  had  the  best  of  it;  we  think, 
therefore,  it  is  likely  that  thou  wilt  be  lucky  in  winning  suits, 
like  thy  kinsfolk." 

"Thou  speakest  well,  Bjarni,"  said  Eyjolf;  "but  I  think  that 
I  have  small  share  in  all  this  that  thou  sayest." 

Then  Flosi  said,  "There  is  no  need  beating  about  the  bush 
as  to  what  we  have  in  mind.  We  wish  to  ask  for  thy  help,  Eyjolf, 
and  that  thou  wilt  stand  by  us  in  our  suits,  and  go  "to  the  court  with 
us,  and  undertake  the  defence,  if  there  be  any,  and  plead  it  for 
us,  and  stand  by  us  in  all  things  that  may  happen  at  this  Thing." 

Eyjolf  jumped  up  in  wrath,  and  said  that  no  man  had  any  right 
to  think  that  he  could  make  a  catspaw  of  him,  or  drag  him  on  if 
he  had  no  mind  to  go  himself. 

"I  see,  too,  now,"  he  says,  "what  has  led  you  to  utter  all  those 
fair  words  with  which  ye  began  to  speak  to  me." 

Then  Hallbjorn  the  Strong  caught  hold  of  him  and  sate  him 
down  by  his  side,  between  him  and  Bjarni,  and  said,  "  No  tree 
falls  at  the  first  stroke,  friend,  but  sit  here  awhile  by  us."  Then 
Flosi  drew  a  gold  ring  off  his  arm. 

"  This  ring  will  I  give  thee,  Eyjolf,  for  thy  help  and  friendship, 
and  so  show  thee  that  I  will  not  befool  thee.  It  will  be  best  for 
thee  to  take  the  ring,  for  there  is  no  man  here  at  the  Thing  to 
whom  I  have  ever  given  such  a  gift." 

The  ring  was  such  a  good  one,  and  so  well  made,  that  it  was 
worth  twelve  hundred  yards  of  russet  stuff. 

Hallbjorn  drew  the  ring  on  Eyjolf 's  arm;  and  Eyjolf  said, 
"It  is  now  most  fitting  that  I  should  take  the  ring,  since  thou 


Chap.  VI.]  NJALS  SAGA  183 

behavest  so  handsomely;  and  now  thou  mayest  make  up  thy 
mind  that  I  will  undertake  the  defence,  and  do  all  things  needful.'^ 

''Now,"  said  Bjarni,  ''ye  behave  handsomely  on  both  sides, 
and  here  are  men  well  fitted  to  be  witnesses,  since  I  and  Hallbjorn 
are  here,  and  thou  hast  undertaken  the  suit." 

Then  Eyjolf  arose,  and  Flosi  too,  and  they  took  one  another  by  the 
hand ;  and  so  Eyjolf  undertook  the  whole  defence  of  the  suit  off 
Flosi 's  hands,  and  so,  too,  if  any  suit  arose  out  of  the  defence,  for 
it  often  happens  that  what  is  a  defence  in  one  suit,  is  a  plaintiff's 
plea  in  another.  So  he  took  upon  him  all  the  proofs  and  proceed- 
ings which  belonged  to  those  suits,  whether  they  were  to  be  pleaded 
before  the  Quarter  Court  or  the  Fifth  Court.  Flosi  handed  them 
over  in  lawful  form,  and  Eyjolf  took  them  in  lawful  form,  and 
then  he  said  to  Flosi  and  Bjarni,  "Now  I  have  undertaken  this 
defence  just  as  ye  asked,  but  my  wish  it  is  that  ye  should  still  keep 
it  secret  at  first;  but  if  the  matter  comes  into  the  Fifth  Court, 
then  be  most  careful  not  to  say  that  ye  have  given  goods  for  my 
help." 

Then  Flosi  went  home  to  his  booth,  and  Bjarni  with  him,  but 
Eyjolf  went  to  the  booth  of  Snorri  the  Priest,  and  sate  down  by 
him,  and  they  talked  much  together. 

Snorri  the  Priest  caught  hold  of  Eyjolf's  arm,  and  turned  up 
the  sleeve,  and  sees  that  he  had  a  great  ring  of  gold  on  his  arm. 
Then  Snorri  the  Priest  said,  "  Pray,  was  this  ring  bought  or  given  ?  " 

Eyjolf  was  put  out  about  it,  and  had  never  a  word  to  say. 
Then  Snorri  said,  "I  see  plainly  that  thou  must  have  taken  it  as 
a  gift,  and  may  this  ring  not  be  thy  death  P' 

Eyjolf  jumped  up  and  went  away,  and  would  not  speak  about  it ; 
and  Snorri  said,  as  Eyjolf  arose,  "It  is  very  likely  that  thou  wilt 
know  what  kind  of  gift  thou  hast  taken  by  the  time  this  Thing  is 
ended." 

Then  Eyjolf  went  to  his  booth. 

138.  OF  ASGRIM,   AND  GIZUR,   AND   KARI 

Now  Asgrim,  Ellidagrim's  son,  talks  to  Gizur  the  White,  and 
Kari,  Solmund's  son,  and  to  Hjallti,  Skeggi's  son,  Mord,  Val- 
gard's  son,  and  Thorgeir  Craggeir,  and  says,  "There  is  no  need  to 
have  any  secrets  here,  for  only  those  men  are  by  who  know  all  our 
counsel.  Now  I  will  ask  you  if  ye  know  anything  of  their  plans, 
for  if  you  do,  it  seems  to  me  that  we  must  take  fresh  counsel  about 
our  own  plans." 


184  GENERAL  LITERATURE  [Part  I. 

"Snorri  the  Priest,"  answers  Gizur  the  White,  "sent  a  man  to 
me,  and  bade  him  tell  me  that  Flosi  hg.d  gotten  great  help  from 
the  Northlanders ;  but  that  Eyjolf ,  Bolverk's  son,  his  kinsman, 
had  had  a  gold  ring  given  him  by  some  one,  and  made  a  secret  of  it, 
and  Snorri  said  it  was  his  meaning  that  Eyjolf,  Bolverk's  son  must 
be  meant  to  defend  the  suit  at  law,  and  that  the  ring  must  have 
been  given  him  for  that." 

They  were  all  agreed  that  it  must  be  so.  Then  Gizur  spoke  to 
them, ''  Now  has  Mord,  Valgard's  son,  my  son-in-law,  undertaken 
a  suit,  which  all  must  think  most  hard,  to  prosecute  Flosi ;  but 
now  my  wish  is  that  ye  share  the  other  suits  amongst  you,  for  now 
it  will  soon  be  time  to  give  notice  of  the  suits  at  the  Hill  of  Laws. 
We  shall  need  also  to  ask  for  more  help." 

Asgrim  said  so  it  should  be,  *'  but  we  will  beg  thee  to  go  round 
with  us  when  we  ask  for  help."  Gizur  said  he  would  be  ready  to 
do  that. 

After  that  Gizur  picked  out  all  the  wisest  men  of  their  company 
to  go  with  him  as  his  backers.  There  was  Hjallti,  Skeggi's  son, 
and  Asgrim,  and  Kari,  and  Thorgeir  Craggeir. 


139.   OF  ASGRIM  AND  GUDMUND 

And  when  they  came  into  the  booth  then  they  saw  where 
Gudmund  the  Powerful  sate  and  talked  with  Einar,  ConaFs  son, 
his  foster-child ;  he  was  a  wise  man. 

Then  they  come  before  him,  and  Gudmund  welcomed  them 
very  heartily,  and  made  them  clear  the  booth  for  them,  that  they 
might  all  be  able  to  sit  down. 

Then  they  asked  what  tidings,  and  Asgrim  said,  "  There  is  no 
need  to  mutter  what  I  have  to  say.  We  wish,  Gudmund,  to  ask 
for  thy  steadfast  help." 

"  Have  ye  seen  any  other  chiefs  before?"  said  Gudmund. 

They  said  they  had  been  to  see  Skapti,  Thorod's  son  and  Snorri 
the  Priest,  and  told  him  quietly  how  they  had  fared  with  each  of 
them. 

Then  Gudmund  said,  "  Last  time  I  behaved  badly  and  meanly 
to  you.  Then  I  was  stubborn,  but  now  ye  shall  drive  your  bargain 
with  me  all  the  more  quickly  because  I  was  more  stubborn  then, 
and  now  I  will  go  myself  with  you  to  the  court  with  all  my  Thing- 
men,  and  stand  by  you  in  all  such  things  as  I  can,  and  fight  for 
you  though  this  be  needed,  and  lay  down  my  Ufe  for  your  lives. 


Chap.  VI. J  NJALS   SAGA  185 

I  will  also  pay  Skapti  out  in  this  way,  that  Thorstein  Gape-mouth 
his  son  shall  be  in  the  battle  on  our  side,  for  he  will  not  dare  to  do 
aught  else  than  I  will,  since  he  has  Jodisa  my  daughter  to  wife, 
and  then  Skapti  will  try  to  part  us." 

They  thanked  him,  and  talked  with  him  long  and  low  after- 
wards, so  that  no  other  men  could  hear. 

Then  Gudmund  bade  them  not  to  go  before  the  knees  of  any 
other  chiefs,  for  he  said  that  would  be  little-hearted. 

"  We  will  now  run  the  risk  with  the  force  that  we  have.  Ye 
must  go  with  your  weapons  to  all  law-business,  but  not  fight  as 
things  stand." 

Then  they  went  all  of  them  home  to  their  booths,  and  all  this 
was  at  first  with  few  men's  knowledge. 

So  now  the  Thing  goes  on. 

140.    OF  THE   DECLARATIONS  OF  THE    SUITS 

It  was  one  day  that  men  went  to  the  Hill  of  Laws,  and  the  chiefs 
were  so  placed  that  Asgrim,  Ellidagrim's  son,  and  Gizur  the  White, 
and  Gudmund  the  Powerful,  and  Snorri  the  Priest,  were  on  the 
upper  hand  by  the  Hill  of  Laws ;  but  the  Eastfirthers  stood  down 
below. 

Mord,  Valgard's  son  stood  next  to  Gizur  his  father-in-law,  he 
was  of  all  men  the  readiest-tongued. 

Gizur  told  him  that  he  ought  to  give  notice  of  the  suit  for  man- 
slaughter, and  bade  him  speak  up,  so  that  all  might  hear  him 
well. 

Then  Mord  took  witness  and  said,  "  I  take  witness  to  this  that 
I  give  notice  of  an  assault  laid  down  by  law  against  Flosi,  Thord's 
son,  for  that  he  rushed  at  Helgi,  Njal's  son  and  dealt  him  a  brain, 
or  a  body,  or  a  marrow  wound,  w^hich  proved  a  death-wound,  and 
from  which  Helgi  got  his  death.  I  say  that  in  this  suit  he  ought 
to  be  made  a  guilty  man,  an  outlaw,  not  to  be  fed,  not  to  be 
forwarded,  not  to  be  helped  or  harboured  in  any  need.  I  say  that 
all  his  goods  are  forfeited,  half  to  me  and  half  to  the  men  of  the 
Quarter,  who  have  a  right  by  law  to  take  his  forfeited  goods.  I 
give  notice  of  this  suit  for  manslaughter  in  the  Quarter  Court  into 
which  this  suit  ought  by  law  to  come.  I  give  notice  of  this  lawful 
notice ;  I  give  notice  in  the  hearing  of  all  men  on  the  Hill  of  Laws  ; 
I  give  notice  of  this  suit  to  be  pleaded  this  summer,  and  of  full  out- 
lawry against  Flosi,  Thord's  son;  I  give  notice  of  a  suit  which 
Thorgeir,  Thorir's  son  has  handed  over  to  me." 


186  GENERAL   LITERATURE  [Part  I. 

Then  a  great  shout  was  uttered  at  the  Hill  of  Laws,  that  Mord 
spoke  well  and  boldly. 

Then  Mord  began  to  speak  a  second  time. 

"I  take  you  to  witness  to  this,"  says  he,  "that  I  give  notice  of  a 
suit  against  Flosi,  Thord's  son.  I  give  notice  for  that  he  wounded 
Helgi,  NjaFs  son  with  a  brain,  or  a  body,  or  a  marrow  wound,  which 
proved  a  death-wound,  and  from  which  Helgi  got  his  death  on 
that  spot  where  Flosi,  Thord's  son  had  first  rushed  on  Helgi,  Njal's 
son  with  an  assault  laid  down  by  law.  I  say  that  thou,  Flosi,  ought 
to  be  made  in  this  suit,  a  guilty  man,  an  outlaw,  not  to  be  fed,  not 
to  be  forwarded,  not  to  be  helped  or  harboured  in  any  need.  I 
say  that  all  thy  goods  are  forfeited,  half  to  me  and  half  to  the  men 
of  the  Quarter,  who  have  a  right  by  law  to  take  the  goods  which 
have  been  forfeited  by  thee.  I  give  notice  of  this  suit  in  the 
Quarter  Court  into  which  it  ought  by  law  to  come ;  I  give  notice  of 
this  lawful  notice ;  I  give  notice  of  it  in  the  hearing  of  all  men  on 
the  Hill  of  Laws;  I  give  notice  of  this  suit  to  be  pleaded  this 
summer,  and  of  full  outlawry  against  Flosi,  Thord's  son.  I  give 
notice  of  the  suit  which  Thorgeir,  Thorir's  son  hath  handed  over 
to  me." 

After  that  Mord  sat  him  down. 

Flosi  listened  carefully,  but  said  never  a  word  the  while. 

Then  Thorgeir  Craggeir  stood  up  and  took  witness,  and  said, 
"  I  take  witness  to  this,  that  I  give  notice  of  a  suit  against  Glum, 
Hilldir's  son,  in  that  he  took  firing  and  lit  it,  and  bore  it  to  the 
house  at  Bergthorsknoll,  when  they  were  burned  inside  it,  to  wit, 
Njal,  Thorgeir's  son,  and  Bergthora,  Skarphedinn's  daughter,  and 
all  those  other  men  who  were  burned  inside  it  there  and  then.  I 
say  that  in  this  suit  he  ought  to  be  made  a  guilty  man,  an  outlaw, 
not  to  be  fed,  not  to  be  forwarded,  not  to  be  helped  or  harboured 
in  any  need.  I  say  that  all  his  goods  are  forfeited,  half  to  me,  and 
half  to  the  men  of  the  .Quarter,  who  have  a  right  by  law  to  take  his 
forfeited  goods;  I  give  notice  of  this  suit  in  the  Quarter  Court, 
into  which  it  ought  by  law  to  come.  I  give  notice  in  the  hearing 
of  all  men  on  the  Hill  of  Laws.  I  give  notice  of  this  suit  to  be 
pleaded  this  summer,  and  of  full  outlawry  against  Glum,  Hilldir's 
son." 

Kari,  Solmund's  son  declared  his  suits  against  Kol,  Thorstein's 
son,  and  Gunnar,  Lambi's  son,  and  Grani,  Gunnar's  son,  and  it 
was  the  common  talk  of  men  that  he  spoke  wondrous  well. 

Thorleif  Crow  declared  his  suit  against  all  the  sons  of  Sigfus, 
but  Thorgrim  the  Big,  his  brother,  against  Modolf,  Kettle's  son. 


Chap.  VI.]  NJALS   SAGA  187 

and  Lambi,  Sigurd's  son,  and  Hroar,  Hamond's  son,  brother  of 
Leidolf,  the  Strong. 

Asgrim,  ElKdagrim's  son  declared  his  suit  against  Leidolf  and 
Thorstein,  Geirleif's  son,  Ami,  Kol's  son,  and  Grim  the  Red. 

And  they  all  spoke  well. 

After  that  other  men  gave  notice  of  their  suits,  and  it  was  far 
on  in  the  day  that  it  went  on  so. 

Then  men  fared  home  to  their  booths. 

Eyjolf,  Bolverk's  son  went  to  his  booth  with  Flosi ;  they  passed 
east  around  the  booth  and  Flosi  said  to  Eyjolf, 

''See'st  thou  any  defence  in  these  suits?  " 

"None,"  says  Eyjolf. 

"  What  counsel  is  now  to  be  taken  ?  "  says  Flosi. 

"I  will  give  thee  a  piece  of  advice,"  said  Eyjolf.  "Now  thou 
shalt  hand  over  thy  priesthood  to  thy  brother  Thorgeir,  but  de- 
clare that  thou  hast  joined  the  Thing  of  Askel  the  Priest  the  son  of 
Thorkettle,  north  away  in  Reykiardale ;  but  if  they  do  not  know 
this,  then  may  be  that  this  will  harm  them,  for  they  will  be  sure 
to  plead  their  suit  in  the  Eastfirthers'  court,  but  they  ought  to 
plead  it  in  the  Northlanders'  court,  and  they  will  overlook  that, 
and  it  is  a  Fifth  Court  matter  against  them  if  they  plead  their 
suit  in  another  court  than  that  in  which  they  ought,  and  then  we 
will  take  that  suit  up,  but  not  until  we  have  no  other  choice  left." 

"May  be,"  said  Flosi,  "that  we  shall  get  the  worth  of  the 
ring." 

"I  don't  know  that,"  says  Eyjolf ;  "but  I  will  stand  by  thee  at 
law,  so  that  men  shall  say  that  there  never  was  a  better  defence. 
Now,  we  must  send  for  Askel,  but  Thorgeir  shall  come  to  thee  at 
once,  and  a  man  with  him." 

A  little  while  after  Thorgeir  came,  and  then  he  took  on  him 
Flosi's  leadership  and  priesthood. 

By  that  time  Askel  was  come  thither  too,  and  then  Flosi  de- 
clared that  he  had  joined  his  Thing,  and  this  was  with  no  man's 
knowledge  save  theirs. 

Now  all  is  quiet  till  the  day  when  the  courts  were  to  go  out  to 
try  suits. 

141.  NOW  MEN  GO  TO  THE   COURTS 

Now  the  time  passes  away  till  the  courts  were  to  go  out  to  try 
suits.  Both  sides  then  made  them  ready  to  go  thither,  and  armed 
them.     Each  side  put  war-tokens  on  their  helmets. 

Then  Thorhall,  Asgrim's  son  said,  "Walk  hastily  in  nothing, 


188  GENERAL   LITERATURE  [Pabt  I. 

father  mine,  and  do  everything  as  lawfully  and  rightly  as  ye  can, 
but  if  ye  fall  into  any  strait  let  me  know  as  quickly  as  ye  can,  and 
then  I  will  give  you  counsel." 

Asgrim  and  the  others  looked  at  him,  and  his  face  was  as  though 
it  were  all  blood,  but  great  teardrops  gushed  out  of  his  eyes.  He 
bade  them  bring  him  his  spear,  that  had  been  a  gift  to  him  from 
Skarphedinn,  and  it  was  the  greatest  treasure. 

Asgrim  said  as  they  went  away,  "Our  kinsman  Thorhall  was 
not  easy  in  his  mind  as  we  left  him  behind  in  the  booth,  and  I 
know  not  what  he  will  be  at." 

Then  Asgrim  said  again,  "Now  we  will  go  to  Mord,  Valgard's 
son,  and  think  of  nought  else  but  the  suit,  for  there  is  more  sport 
in  Flosi  than  in  very  many  other  men." 

Then  Asgrim  sent  a  man  to  Gizur  the  White,  and  Hjallti,  Skeggi's 
son,  and  Gudmund  the  Powerful.  Now  they  all  came  together, 
and  went  straight  to  the  court  of  Eastfirthers.  They  went  to  the 
court  from  the  south,  but  Flosi  and  all  the  Eastfirthers  with  him 
went  to  it  from  the  north.  There  were  also  the  men  of  Reykdale 
and  the  Axefirthers  with  Flosi.  There,  too,  was  Eyjolf,  Bolverk's 
son.  Flosi  looked  at  Eyjolf,  and  said,  "All  now  goes  fairly,  and 
may  be  that  it  will  not  be  far  off  from  thy  guess." 

"Keep  thy  peace  about  it,"  says  Eyjolf,  "and  then  we  shall  be 
sure  to  gain  our  point." 

Now  Mord  took  witness,  and  bade  all  those  men  who  had  suits 
of  outlawry  before  the  court  to  cast  lots  who  should  first  plead  or 
declare  his  suit,  and  who  next,  and  who  last ;  he  bade  them  by  a 
lawful  bidding  before  the  court,  so  that  the  judges  heard  it.  Then 
lots  were  cast  as  to  the  declarations,  and  he,  Mord,  drew  the  lot 
to  declare  his  suit  first. 

Now  Mord,  Valgard's  son  took  witness  the  second  time,  and  said, 
"  I  take  witness  to  this,  that  I  except  all  mistakes  in  words  in  my 
pleading,  whether  they  be  too  many  or  wrongly  spoken,  and  I 
claim  the  right  to  amend  all  my  words  until  I  have  put  them  into 
proper  lawful  shape.     I  take  witness  to  myself  of  this." 

Again  Mord  said,  "I  take  witness  to  this,  that  I  bid  Flosi, 
Thord's  son,  or  any  other  man  who  has  undertaken  the  defence 
made  over  to  him  by  Flosi,  to  listen  for  him  to  my  oath,  and  to  my 
declaration  of  my  suit,  and  to  all  the  proofs  and  proceedings  which 
I  am  about  to  bring  forward  against  him ;  I  bid  him  by  a  lawful 
bidding  before  the  court,  so  that  the  judges  may  hear  it  across  the 
court." 

Again  Mord,  Valgard's  son  said,  "I  take  witness  to  this,  that  I 


Chap.  VI.]  NJALS   SAGA  189 

take  an  oath  on  the  book,  a  lawful  oath,  and  I  say  it  before  God,, 
that  I  will  so  plead  this  suit  in  the  most  truthful,  and  most  just 
and  most  lawful  way,  so  far  as  I  know ;  and  that  I  will  bring  for- 
ward all  my  proofs  in  due  form,  and  utter  them  faithfully  so  long 
as  I  am  in  this  suit." 

After  that  he  spoke  in  these  words,  "I  have  called  Thorodd  as 
my  first  witness,  and  Thorbjorn  as  my  second ;  I  have  called  them 
to  bear  witness  that  I  gave  notice  of  an  assault  laid  down  by  law 
against  Flosi,  Thord's  son,  on  that  spot  where  he,  Flosi,  Thord's 
son,  rushed  with  an  assault  laid  down  by  law  on  Helgi,  Njal's  son, 
when  Flosi,  Thord's  son  wounded  Helgi,  Njal's  son  with  a  brain,  or 
a  body,  or  a  marrow  wound,  which  proved  a  death-wound,  and 
from  which  Helgi  got  his  death.  I  said  that  he  ought  to  be  made 
in  this  suit  a  guilty  man,  an  outlaw,  not  to  be  fed,  not  to  be  for- 
warded, not  to  be  helped  or  harboured  in  any  need ;  I  said  that 
all  his  goods  were  forfeited,  half  to  me  and  half  to  the  men  of  the 
Quarter  who  have  the  right  by  law  to  take  the  goods  which  he  has 
forfeited ;  I  gave  notice  of  the  suit  in  the  Quarter  Court  into  which 
the  suit  ought  by  law  to  come ;  I  gave  notice  of  that  lawful  notice ; 
I  gave  notice  in  the  hearing  of  all  men  at  the  Hill  of  Laws ;  I 
gave  notice  of  this  suit  to  be  pleaded  now  this  summer,  and  of 
full  outlawry  against  Flosi,  Thord's  son.  I  gave  notice  of  a  suit 
which  Thorgeir,  Thorir's  son  had  handed  over  to  me;  and  I  had 
all  these  words  in  my  notice  which  I  have  now  used  in  this  declara- 
tion of  my  suit.  I  now  declare  this  suit  of  outlawry  in  this  shape 
before  the  court  of  the  Eastfirthers  over  the  head  of  John,  as  I 
uttered  it  when  I  gave  notice  of  it." 

Then  Mord  spoke  again,  "  I  have  called  Thorodd  as  my  first  wit- 
ness, and  Thorbjorn  as  my  second.  I  have  called  them  to  bear  wit- 
ness that  I  gave  notice  of  a  suit  against  Flosi,  Thord's  son  for  that 
he  wounded  Helgi,  Njal's  son  with  a  brain,  or  a  body,  or  a  mar- 
row wound,  which  proved  a  death-wound,  and  from  which  Helgi 
got  his  death.  I  said  that  he  ought  to  be  made  in  this  suit  a  guilty 
man,  an  outlaw,  not  to  be  fed,  not  to  be  forwarded,  not  to  be  helped 
or  harboured  in  any  need ;  I  said  that  all  his  goods  were  forfeited, 
half  to  me  and  half  to  the  men  of  the  Quarter  who  have  the  right 
by  law  to  take  the  goods  which  he  has  forfeited ;  I  gave  notice  of 
the  suit  in  the  Quarter  Court  into  which  the  suit  ought  by  law  to 
come ;  I  gave  notice  of  that  lawful  notice ;  I  gave  notice  in  hearing 
of  all  men  at  the  Hill  of  Laws ;  I  gave  notice  of  this  suit  to  be 
pleaded  now  this  summer,  and  of  full  outlawry  against  Flosi, 
Thord's  son.     I  gave  notice  of  a  suit  which  Thorgeir,  Thorir's  son 


190  GENERAL   LITERATURE  [Part  I. 

had  handed  over  to  me ;  and  I  had  all  these  words  in  my  notice 
which  I  have  now  used  in  this  declaration  of  my  suit.  I  now  de- 
clare this  suit  of  outlawry  in  this  shape  before  the  court  of  the  East- 
firthers  over  the  head  of  John,  as  I  uttered  it  when  I  gave  notice  of 
it." 

Then  Mord's  witnesses  to  the  notice  came  before  the  court,  and 
spake  so  that  one  uttered  their  witness,  but  both  confirmed  it 
by  their  common  consent  in  this  form,  "  I  bear  witness  that  Mord 
called  Thorodd  as  his  first  witness,  and  me  as  his  second,  and  my 
name  is  Thorbjorn"  —  then  he  named  his  father's  name  —  "Mord 
called  us  two  as  his  witnesses  that  he  gave  notice  of  an  assault  laid 
down  by  law  against  Flosi,  Thord's  son  when  he  rushed  on  Helgi, 
Njal's  son,  in  that  spot  where  Flosi,  Thord's  son  dealt  Helgi,  Njal's 
son  a  brain,  or  a  body,  or  a  marrow  wound,  that  proved  a  death- 
wound,  and  from  which  Helgi  got  his  death.  He  said  that  Flosi 
ought  to  be  made  in  this  suit  a  guilty  man,  an  outlaw,  not  to  be 
fed,  not  to  be  forwarded,  not  to  be  helped  or  harboured  by  any 
man ;  he  said  that  all  his  goods  were  forfeited,  half  to  himself  and 
half  to  the  men  of  the  Quarter  who  have  the  right  by  law  to  take 
the  goods  which  he  had  forfeited ;  he  gave  notice  of  the  suit  in 
the  Quarter  Court  into  which  the  suit  ought  by  law  to  come; 
he  gave  notice  of  that  lawful  notice ;  he  gave  notice  in  the  hearing 
of  all  men  at  the  Hill  of  Laws ;  he  gave  notice  of  this  suit  to  be 
pleaded  now  this  •  summer,  and  of  full  outlawry  against  Flosi, 
Thord's  son.  He  gave  notice  of  a  suit  which  Thorgeir,  Thorir's 
son  had  handed  over  to  him.  He  used  all  those  words  in  his  notice 
which  he  used  in  the  declaration  of  his  suit,  and  which  we  have  used 
in  bearing  witness ;  we  have  now  borne  our  witness  rightly  and 
lawfully,  and  we  are  agreed  in  bearing  it ;  we  bear  this  witness  in 
this  shape  before  the  Esistfirthers'  Court  over  the  head  of  John,^ 
as  Mord  uttered  it  when  he  gave  his  notice." 

A  second  time  they  bore  their  witness  of  the  notice  before  the 
court,  and  put  the  wounds  first  and  the  assault  last,  and  used  all 
the  same  words  as  before,  and  bore  their  witness  in  this  shape 
before  the  Eastfirthers'  Court  just  as  Mord  uttered  them  when  he 
gave  his  notice. 

Then  Mord's  witnesses  to  the  handing  over  of  the  suit  went 

before  the  court,  and  one  uttered  their  witness,  and  both  confirmed 

it  by  common  consent,  and  spoke  in  these  words,  "That  those 

1  John  for  a  man,  and  Gudruna  for  a  woman,  were  standing  names  in 
the  Formularies  of  the  Icelandic  code,  answering  to  the  "M  or  N"  in  om* 
Liturgy,  or  to  those  famous  fictions  of  English  law,  "John  Doe  and 
Richard  Roe." 


r 


Chap.  VI.]  NJALS   SAGA  191 

two,  Mord,  Valgard's  son  and  Thorgeir,  Thorir's  son,  took  them 
to  witness  that  Thorgeir,  Thorir's  son  handed  over  a  suit  for  man- 
slaughter to  Mord,  Valgard's  son  against  Flosi,  Thord's  son  for  the 
slaying  of  Helgi,  Njal's  son ;  he  handed  over  to  him  then  this  suit, 
with  all  the  proofs  and  proceedings  which  belonged  to  the  suit, 
he  handed  it  over  to  him  to  plead  and  to  settle,  and  to  make  use  of 
all  rights  as  though  he  were  the  rightful  next  of  kin;  Thorgeir 
handed  it  over  lawfully,  and  Mord  took  it  lawfully." 

They  bore  witness  of  the  handing  over  of  the  suit  in  this  shape 
before  the  Eastfirthers'  Court  over  the  head  of  John,  just  as  Mord 
or  Thorgeir  had  called  them  as  witnesses  to  prove. 

They  made  all  these  witnesses  swear  on  oath  ere  they  bore 
witness,  and  the  judges  too. 

Again  Mord,  Valgard's  son  took  witness.  "I  take  witness  to 
this,"  said  he,  "that  I  bid  those  nine  neighbours  whom  I  summoned 
when  I  laid  this  suit  against  Flosi,  Thord's  son,  to  take  their  seats 
west  on  the  river-bank,  and  I  call  on  the  defendant  to  challenge 
this  inquest,  I  call  on  him  by  a  lawful  bidding  before  the  court  so 
that  the  judges  may  hear." 

Again  Mord  took  witness.  "I  take  witness  to  this,  that  I  bid 
Flosi,  Thord's  son,  or  that  other  man  who  has  the  defence  handed 
over  to  him,  to  challenge  the  inquest  which  I  have  caused  to  take 
their  seats  west  on  the  river-bank.  I  bid  thee  by  a  lawful  bidding 
before  the  court  so  that  the  judges  may  hear." 

Again  Mord  took  witness.  "  I  take  witness  to  this,  that  now  are 
all  the  first  steps  and  proofs  brought  forward  which  belong  to 
the  suit.  Summons  to  hear  my  oath,  oath  taken,  suit  declared, 
witness  borne  to  the  notice,  witness  borne  to  the  handing  over  of  the 
suit,  the  neighbours  on  the  inquest  bidden  to  take  their  seats,  and 
the  defendant  bidden  to  challenge  the  inquest.  I  take  this  witness 
to  these  steps  and  proofs  which  are  now  brought  forward,  and 
also  to  this  that  I  shall  not  be  thought  to  have  left  the  suit  though 
I  go  away  from  the  court  to  look  up  proofs,  or  on  other  business." 

Now  Flosi  and  his  men  went  thither  where  the  neighbours  on 
the  inquest  sate. 

Then  Flosi  said  to  his  men,  "The  sons  of  Sigfus  must  know  best 
whether  these  are  the  rightful  neighbours  to  the  spot  who  are 
here  summoned." 

Kettle  of  the  Mark  answered,  "Here  is  that  neighbour  who  held 
Mord  at  the  font  when  he  was  baptized,  but  another  is  his  second 
cousin  by  kinship." 

Then  they  reckoned  up  his  kinship,  and  proved  it  with  an  oath. 


192  GENERAL   LITERATURE  [Part  I. 

Then  Eyjolf  took  witness  that  the  inquest  should  do  nothing  till 
it  was  challenged. 

A  second  time  Eyjolf  took  witness,  *'I  take  witness  to  this," 
said  he,  ''that  I  challenge  both  these  men  out  of  the  inquest,  and 
set  them  aside"  —  here  he  named  them  by  name,  and  their  fathers 
as  well  —  ''for  this  sake,  that  one  of  them  is  Mord's  second  cousin 
by  kinship,  but  the  other  for  gossipry,^  for  which  sake  it  is  lawful 
to  challenge  a  neighbour  on  the  inquest ;  ye  two  are  for  a  lawful 
reason  incapable  of  uttering  a  finding,  for  now  a  lawful  challenge 
has  overtaken  you,  therefore  I  challenge  and  set  you  aside  by  the 
rightful  custom  of  pleading  at  the  Althing,  and  by  the  law  of  the 
land ;  I  challenge  you  in  the  cause  which  Flosi,  Thord's  son  has 
handed  over  to  me." 

Now  all  the  people  spoke  out,  and  said  that  Mord's  suit  had  come 
to  naught,  and  all  were  agreed  in  this  that  the  defence  was  better 
than  the  prosecution. 

Then  Asgrim  said  to  Mord,  ''The  day  is  not  yet  their  own, 
though  they  think  now  that  they  have  gained  a  great  step ;  but 
now  some  one  shall  go  to  see  Thorhall  my  son,  and  know  what 
advice  he  gives  us." 

Then  a  trusty  messenger  was  sent  to  Thorhall,  and  told  him  as 
plainly  as  he  could  how  far  the  suit  had  gone,  and  how  Flosi  and 
his  men  thought  they  had  brought  the  finding  of  the  inquest  to  a 
dead-lock. 

"I  will  so  make  it  out,"  says  Thorhall,  "that  this  shall  not  cause 
you  to  lose  the  suit ;  and  tell  them  not  to  believe  it,  though  quirks 
and  quibbles  be  brought  against  them,  for  that  wiseacre  Eyjolf 
has  now  overlooked  something.  But  now  thou  shalt  go  back  as 
quickly  as  thou  canst,  and  say  that  Mord,  Valgard's  son  must  go 
before  the  court,  and  take  witness  that  their  challenge  has  come 
to  naught,"  and  then  he  told  him  step  by  step  how  they  must  pro- 
ceed. 

The  messenger  came  and  told  them  Thorhall' s  advice. 

Then  Mord,  Valgard's  son  went  to  the  court  and  took  witness. 
"I  take  witness  to  this,"  said  he,  "that  I  make  Eyjolf 's  challenge 
void  and  of  none  effect ;  and  my  ground  is,  that  he  challenged  them 
not  for  their  kinship  to  the  true  plaintiff,  the  next  of  kin,  but  for 
their  kinship  to  him  who  pleaded  the  suit ;  I  take  this  witness  to 
myself,  and  to  all  those  to  whom  this  witness  will  be  of  use.^' 

After  that  he  brought  that  w^itness  before  the  court. 

*  "Gossipry,"  that  is,  because  they  were  gossips,  God^s  sib,  relations 
by  baptism. 


i 

■r  Chap.  VI.]  NJALS    SAGA  193 

B  Now  he  went  whither  the  neighbours  sate  on  the  inquest,  and 
B  bade  those  to  sit  down  again  who  had  risen  up,  and  said  they  were 
rightly  called  on  to  share  in  the  finding  of  the  inquest. 

Then  all  said  that  Thorhall  had  done  great  things,  and  all 
thought  the  prosecution  better  than  the  defence. 

Then  Flosi  said  to  Eyjolf,  "  Thinkest  thou  that  this  is  good  law  ?  '^ 

"  I  think  so,  surely,''  he  says, ''  and  beyond  a  doubt  we  overlooked 
this ;  but  still  we  will  have  another  trial  of  strength  with  them." 

Then  Eyjolf  took  witness.  *'I  take  witness  to  this,"  said  he, 
"that  I  challenge  these  two  men  out  of  the  inquest"  —  here  he 
named  them  both  —  ''for  that  sake  that  they  are  lodgers,  but  not 
householders ;  I  do  not  allow  you  two  to  sit  on  the  inquest,  for  now 
a  lawful  challenge  has  overtaken  you ;  I  challenge  you  both  and 
set  you  aside  out  of  the  inquest,  by  the  rightful  custom  of  the  Al- 
thing and  by  the  law  of  the  land." 

Now  Eyjolf  said  he  was  much  mistaken  if  that  could  be  shaken ; 
and  then  all  said  that  the  defence  was  better  than  the  prosecution. 

Now  all  men  praised  Eyjolf,  and  said  there  was  never  a  man  who 
could  cope  with  him  in  lawcraft. 

Mord,  Valgard's  son  and  Asgrim,  Ellidagrim's  son  now  sent  a 
man  to  Thorhall  to  tell  him  how  things  stood ;  but  when  Thorhall 
heard  that,  he  asked  what  goods  they  owned,  or  if  they  were 
paupers  ? 

The  messenger  said  that  one  gained  his  livelihood  by  keeping 
milch-kine,  and  ''he  has  both  cows  and  ewes  at  his  abode;  but 
the  other  has  a  third  of  the  land  which  he  and  the  freeholder  farm, 
and  finds  his  own  food ;  and  they  have  one  hearth  between  them, 
he  and  the  man  who  lets  the  land,  and  one  shepherd." 

Then  Thorhall  said,  "They  will  fare  now  as  before,  for  they  must 
have  made  a  mistake,  and  I  will  soon  upset  their  challenge  and  this 
though  Eyjolf  had  used  such  big  words  that  it  was  law." 

Now  Thorhall  told  the  messenger  plainly,  step  by  step,  how 
they  must  proceed ;  and  the  messenger  came  back  and  told  Mord 
and  Asgrim  all  the  counsel  that  Thorhall  had  given. 

Then  Mord  went  to  the  court  and  took  witness.  "  I  take  witness 
to  this,  that  I  bring  to  naught  Eyjolf,  Bolverk's  son's  challenge, 
for  that  he  has  challenged  those  men  out  of  the  inquest  who  have 
a  lawful  right  to  be  there ;  every  man  has  a  right  to  sit  on  an  in- 
quest of  neighbours,  who  owns  three  hundreds  in  land  or  more, 
though  he  may  have  no  dairy-stock ;  and  he  too  has  the  same  right 
who  lives  by  dairy-stock  worth  the  same  sum,  though  he  leases  no 
land." 


194  GENERAL    LITERATURE  [Pabt  I. 

Then  he  brought  this  witness  before  the  court,  and  then  he  went 
whither  the  neighbours  on  the  inquest  were,  and  bade  them  sit 
down,  and  said  they  were  rightfully  among  the  inquest. 

Then  there  was  a  great  shout  and  cry,  and  then  all  men  said 
that  Flosi's  and  Eyjolf's  cause  was  much  shaken,  and  now  men 
were  of  one  mind  as  to  this,  that  the  prosecution  was  better  than 
the  defence. 

Then  Flosi  said  to  Eyjolf,  ''Can  this  be  law?" 

Eyjolf  said  he  had  not  wisdom  enough  to  know  that  for  a  surety, 
and  then  they  sent  a  man  to  Skapti,  the  Speaker  of  the  Law,  to 
ask  whether  it  were  good  law,  and  he  sent  them  back  word  that  it 
was  surely  good  law,  though  few  knew  it. 

Then  this  was  told  to  Flosi,  and  Eyjolf,  Bolverk's  son  asked  the 
sons  of  Sigfus  as  to  the  other  neighbours  who  were  summoned 
thither. 

They  said  there  were  four  of  them  who  were  wrongly  summoned ; 
*'for  those  sit  now  at  home  who  were  nearer  neighbours  to  the 
spot." 

Then  Eyjolf  took  witness  that  he  challenged  all  those  four  men 
out  of  the  inquest,  and  that  he  did  it  with  lawful  form  of  challenge. 
After  that  he  said  to  the  neighbours,  ''Ye  are  bound  to  render  law- 
ful justice  to  both  sides,  and  now  ye  shall  go  before  the  court 
when  ye  are  called,  and  take  witness  that  ye  find  that  bar  to 
uttering  your  finding;  that  ye  are  but  five  summoned  to  utter 
your  finding,  but  that  ye  ought  to  be  nine ;  and  now  Thorhall  may 
prove  and  carry  his  point  in  every  suit,  if  he  can  cure  this  flaw  in 
this  suit." 

And  now  it  was  plain  in  everything  that  Flosi  and  Eyjolf  were 
very  boastful ;  and  there  was  a  great  cry  that  now  the  suit  for 
the  burning  was  quashed,  and  that  again  the  defence  was  better 
than  the  prosecution. 

Then  Asgrim  spoke  to  Mord,  "They  know  not  yet  of  what  to 
boast  ere  we  have  seen  my  son  Thorhall.  Njal  told  me  that  he 
had  so  taught  Thorhall  law,  that  he  would  turn  out  the  best 
lawyer  in  Iceland  whenever  it  were  put  to  the  proof." 

Then  a  man  was  sent  to  Thorhall  to  tell  him  how  things  stood, 
and  of  Flosi's  and  Eyjolf's  boasting,  and  the  cry  of  the  people  that 
the  suit  for  the  burning  was  quashed  in  Mord's  hands. 

"It  will  be  well  for  them,"  says  Thorhall,  "if  they  get  not 
disgrace  from  this.  Thou  shalt  go  and  tell  Mord  to  take  witness, 
and  swear  an  oath,  that  the  greater  part  of  the  inquest  is  rightly 
summoned,  and  then  he  shall  bring  that  witness  before  the  court. 


I 


Chap.  VI.]  NJALS   SAGA  195 

and  then  he  may  set  the  prosecution  on  its  feet  again ;  but  he  will 
have  to  pay  a  fine  of  three  marks  for  every  man  that  he  has  wrongly 
summoned ;  but  he  may  not  be  prosecuted  for  that  at  this  Thing ; 
and  now  thou  shalt  go  back." 

He  does  so,  and  told  Mord  and  Asgrim  all,  word  for  word, 
that  Thorhall  had  said. 

Then  Mord  went  to  the  court,  and  took  witness,  and  swore  an 
oath  that  the  greater  part  of  the  inquest  was  rightly  summoned, 
and  said  then  that  he  had  set  the  prosecution  on  its  feet  again, 
and  then  he  went  on,  ^'And  so  our  foes  shall  have  honour  from 
something  else  than  from  this,  that  we  have  here  taken  a  great 
false  step." 

Then  there  was  a  great  roar  that  Mord  handled  the  suit  well ; 
but  it  was  said  that  Flosi  and  his  men  betook  them  only  to  quibbling 
and  wrong. 

Flosi  asked  Eyjolf  if  this  could  be  good  law,  but  he  said  he  could 
not  surely  tell,  but  said  the  Lawman  must  settle  this  knotty 
point. 

Then  Thorkel,  Geiti's  son  went  on  their  behalf  to  tell  the  Lawman 
how  things  stood,  and  asked  whether  this  were  good  law  that  Mord 
had  said. 

''More  men  are  great  lawyers  now,"  says  Skapti,  ''than  I 
thought.  I  must  tell  thee,  then,  that  this  is  such  good  law  in  all 
points,  that  there  is  not  a  word  to  say  against  it ;  but  still  I  thought 
that  I  alone  would  know  this,  now  that  Njal  was  dead,  for  he  was 
the  only  man  I  ever  knew  who  knew  it." 

Then  Thorkel  went  back  to  Flosi  and  Eyjolf,  and  said  that  this 
was  good  law. 

Then  Mord,  Valgard's  son  went  to  the  court  and  took  witness. 
"I  take  witness  to  this,"  he  said,  "that  I  bid  those  neighbours  on 
the  inquest  in  the  suit  which  I  set  on  foot  against  Flosi,  Thord's 
son  now  to  utter  their  finding,  and  to  find  it  either  against  him  or 
for  him ;  I  bid  them  by  a  lawful  bidding  before  the  court,  so  that 
the  judges  may  hear  it  across  the  court." 

Then  the  neighbours  on  Mord's  inquest  went  to  the  court,  and 
one  uttered  their  finding,  but  all  confirmed  it  by  their  consent; 
and  they  spoke  thus,  word  for  word,  "Mord,  Valgard's  son  sum- 
moned nine  of  us  thanes  on  this  inquest,  but  here  we  stand  five  of  us, 
but  four  have  been  challenged  and  set  aside,  and  now  witness  has 
been  borne  as  to  the  absence  of  the  four  who  ought  to  have  uttered 
this  finding  along  with  us,  and  now  we  are  bound  by  law  to  utter  our 
finding.     We  were   summoned    to    bear    this    witness,    whether 


196  GENERAL   LITERATURE  [Part  I. 

Flosi,  Thord'sson  rushed  with  an  assault  laid  down  by  lawonHelgi, 
NjaFs  son,  on  that  spot  where  Flosi,  Thord's  son  .wounded  Helgi, 
Njal's  son  with  a  brain,  or  a  bodyj  or  a  marrow  wound,  which 
proved  a  death-wound,  and  from  which  Helgi  got  his  death.  He 
summoned  us  to  utter  all  those  words  which  it  was  lawful  for  us 
to  utter,  and  which  he  should  call  on  us  to  answer  before  the 
court,  and  which  belong  to  this  suit ;  he  summoned  us,  so  that  we 
heard  what  he  said ;  he  summoned  us  in  a  suit  which  Thorgeir, 
Thorir's  son  had  handed  over  to  him,  and  now  we  have  all  sworn 
an  oath,  and  found  our  lawful  finding,  and  are  all  agreed,  and 
we  utter  our  finding  against  Flosi,  and  we  say  that  he  is  truly 
guilty  in  this  suit.  We  nine  men  on  this  inquest  of  neighbours 
so  shapen,  utter  this  our  finding  before  the  Eastfirthers'  Court 
over  the  head  of  John,  as  Mord  summoned  us  to  do;  but  this 
is  the  finding  of  all  of  us." 

Again  a  second  time  they  uttered  their  finding  against  Flosi, 
and  uttered  it  first  about  the  wounds,  and  last  about  the  assault, 
but  all  their  other  words  they  uttered  just  as  they  had  before 
uttered  their  finding  against  Flosi,  and  brought  him  in  truly  guilty 
in  the  suit. 

Then  Mord,  Valgard's  son  went  before  the  court,  and  took  witness 
that  those  neighbours  whom  he  had  summoned  in  the  suit  which 
he  had  set  on  foot  against  Flosi,  Thord's  son  had  now  uttered  their 
finding,  and  brought  him  in  truly  guilty  in  the  suit ;  he  took  witness 
to  this  for  his  own  part,  or  for  those  who  might  wish  to  make  use 
of  this  witness. 

Again  a  gecond  time  Mord  took  witness  and  said,  '^I  take 
witness  to  this  that  I  call  on  Flosi,  or  that  man  who  has  to  under- 
take the  lawful  defence  which  he  has  handed  over  to  him,  to  begin 
his  defence  to  this  suit  which  I  have  set  on  foot  against  him,  for 
now  all  the  steps  and  proofs  have  been  brought  forward  which 
belong  by  law  to  this  suit;  all  witness  borne,  the  finding  of  the 
inquest  uttered  and  brought  in,  witness  taken  to  the  finding,  and 
to  all  the  steps  which  have  gone  before ;  but  if  any  such  thing  arises 
in  their  lawful  defence  which  I  need  to  turn  into  a  suit  against 
them,  then  I  claim  the  right  to  set  that  suit  on  foot  against  them. 
I  bid  this  my  lawful  bidding  before  the  court,  so  that  the  judges 
may  hear." 

"It  gladdens  me  now,  Eyjolf,"  said  Flosi,  ''in  my  heart  to  think 
what  a  wry  face  they  will  make,  and  how  their  pates  will  tingle 
when  thou  bringest  forward  our  defence." 


Chap.  VI.]  NJALS   SAGA  197 

142.  OF  EYJOLF,  BOLVERK'S  SON 

Then  Eyjolf ,  Bolverk's  son  went  before  the  court,  and  took  wit- 
ness to  this,  *'I  take  witness  that  this  is  a  lawful  defence  in  this 
cause,  that  ye  have  pleaded  the  suit  in  the  Eastfirthers'  Court, 
when  ye  ought  to  have  pleaded  it  in  the  Northlanders'  Court; 
for  Flosi  has  declared  himself  one  of  the  Thingmen  of  Askel  the 
Priest;  and  here  now  are  those  two  witnesses  who  were  by, 
and  who  will  bear  witness  that  Flosi  handed  over  his  priest- 
hood to  his  brother  Thorgeir,  but  afterwards  declared  himself 
one  of  Askel  the  Priest's  Thingmen.  I  take  witness  to  this  for 
my  own  part,  and  for  those  who  may  need  to  make  use  of  it." 

Again  Eyjolf  took  witness,  *'I  take  witness,"  he  said,  *Ho  this, 
that  I  bid  Mord  who  pleads  this  suit,  or  the  next  of  kin,  to  Hsten  to 
my  oath,  and  to  my  declaration  of  the  defence  which  I  am  about  to 
bring  forward ;  I  bid  him  by  a  lawful  bidding  before  the  court, 
so  that  the  judges  may  hear  me." 

Again  Eyjolf  took  witness,  *'  I  take  witness  to  this,  that  I  swear 
an  oath  on  the  book,  a  lawful  oath,  and  say  it  before  God,  that  I 
will  so  defend  this  cause,  in  the  most  truthful,  and  most  just, 
and  most  lawful  way,  so  far  as  I  know,  and  so  fulfil  all  lawful  duties 
which  belong  to  me  at  this  Thing." 

Then  Eyjolf  said,  ''These  two  men  I  take  to  witness  that  I 
bring  forward  this  lawful  defence  that  this  suit  was  pleaded  in 
another  Quarter  Court,  than  that  in  which  it  ought  to  have  been 
pleaded ;  and  I  say  that  for  this  sake  their  suit  has  come  to 
naught ;  I  utter  this  defence  in  this  shape  before  the  Eastfirthers' 
Court." 

After  that  he  let  all  the  witness  be  brought  forward  which  be- 
longed to  the  defence,  and  then  he  took  witness  to  all  the  steps 
in  the  defence  to  prove  that  they  had  all  been  duly  taken. 

After  that  Eyjolf  again  took  witness  and  said,  ''I  take  witness 
to  this,  that  I  forbid  the  judges,  by  a  lawful  protest  before  the 
priest,  to  utter  judgment  in  the  suit  of  Mord  and  his  friends,  for 
now  a  lawful  defence  has  been  brought  before  the  court.  I  forbid 
you  by  a  protest  made  before  a  priest ;  by  a  full,  fair,  and  binding 
protest ;  as  I  have  a  right  to  forbid  you  by  the  common  custom 
of  the  Althing,  and  by  the  law  of  the  land." 

After  that  he  called  on  the  judges  to  pronounce  for  the  defence. 

Then  Asgrim  and  his  friends  brought  on  the  other  suits  for  the 
burning,  and  those  suits  took  their  course. 


198  GENERAL   LITERATURE  [Part  I. 

143.  THE  COUNSEL  OF  THORHALL,  ASGRIM'S  SON 

Now  Asgrim  and  his  friends  sent  a  man  to  Thorhall,  and  let 
him  be  told  in  what  a  strait  they  had  come. 

''  Too  far  off  was  I  now,"  answers  Thorhall,  "for  this  cause  might 
still  not  have  taken  this  turn  if  I  had  been  by.  I  now  see  their 
course  that  they  must  mean  to  summon  you  to  the  Fifth  Court 
for  contempt  of  the  Thing.  They  must  also  mean  to  divide  the 
Eastfirthers'  Court  in  the  suit  for  the  burning,  so  that  no  judgment 
may  be  given,  for  now  they  behave  so  as  to  show  that  they  will 
stay  at  no  ill.  Now  shalt  thou  go  back  to  them  as  quickly  as 
thou  canst,  and  say  that  Mord  must  summon  them  both,  both 
Flosi  and  Eyjolf,  for  having  brought  money  into  the  Fifth  Court, 
and  make  it  a  case  of  lesser  outlawry.  Then  he  shall  summon 
them  with  a  second  summons  for  that  they  have  brought  forward 
that  witness  which  had  nothing  to  do  with  their  cause,  and  so  were 
guilty  of  contempt  of  the  Thing;  and  tell  them  that  I  say  this, 
that  if  two  suits  for  lesser  outlawry  hang  over  one  and  the  same 
man,  that  he  shall  be  adjudged  a  thorough  outlaw  at  once.  And 
for  this  ye  must  set  your  suits  on  foot  first,  that  then  ye  will  first 
go  to  trial  and  judgment." 

Now  the  messenger  went  his  way  back  and  told  Mord  and 
Asgrim. 

After  that  they  went  to  the  Hill  of  Laws,  and  Mord,  Valgard's 
son  took  witness.  "I  take  witness  to  this  that  I  summon  Flosi, 
Thord's  son,  for  that  he  gave  money  for  his  help  here  at  the  Thing 
to  Eyjolf,  Bolverk's  son.  I  say  that  he  ought  on  this  charge  to  be 
made  a  guilty  outlaw,  for  this  sake  alone  to  be  forwarded  or  to  be 
allowed  the  right  of  frithstow,^  if  his  fine  and  bail  are  brought 
forward  at  the  execution  levied  on  his  house  and  goods,  but  else  to 
become  a  thorough  outlaw.  I  say  all  his  goods  are  forfeited,  half  to 
me  and  half  to  the  men  of  the  Quarter  who  have  the  right  by  law  to 
take  his  goods  after  he  has  been  outlawed .  I  summon  this  cause  be- 
fore the  Fifth  Court,  whither  the  cause  ought  to  come  by  law ;  I 
summon  it  to  be  pleaded  now  and  to  full  outlawry.  I  summon 
with  a  lawful  summons.  I  summon  in  the  hearing  of  all  men  at 
the  Hill  of  Laws." 

With  a  like  summons  he  summoned  Eyjolf,  Bolverk's  son,  for 
that  he  had  taken  and  received  the  money,  and  he  summoned  him 
for  that  sake  to  the  Fifth  Court. 

Again  a  second  time  he  summoned  Flosi  and  Eyjolf,  for  that 

^  An  old  English  law  term  for  asylum  or  sanctuary. 


Chap.  VI.]  NJALS   SAGA  199 

sake  that  they  had  brought  forward  that  witness  at  the  Thing 
which  had  nothing  lawfully  to  do  with  the  cause  of  the  parties^ 
and  had  so  been  guilty  of  contempt  of  the  Thing ;  and  he  laid  the 
penalty  for  that  at  lesser  outlawry. 

Then  they  went  away  to  the  Court  of  Laws ;  there  the  Fifth 
Court  was  then  set. 

Now  when  Mord  and  Asgrim  had  gone  away,  then  the  judges 
in  the  Eastfirthers'  Court  could  not  agree  how  they  should  give 
judgment,  for  some  of  them  wished  to  give  judgment  for  Flosi, 
but  some  for  Mord  and  Asgrim.  Then  Flosi  and  Eyjolf  tried  to 
divide  the  court,  and  there  they  stayed,  and  lost  time  over  that 
while  the  summoning  at  the  Hill  of  Laws  was  going  on.  A  little 
while  after  Flosi  and  Eyjolf  were  told  that  they  had  been  summoned 
at  the  Hill  of  Laws  into  the  Fifth  Court,  each  of  them  with  two 
summons.  Then  Eyjolf  said,  "In  an  evil  hour  have  we  loitered 
here  while  they  have  been  before  us  in  quickness  of  summoning. 
Now  hath  come  out  Thorhall's  cunning,  and  no  man  is  his  match 
in  wit.  Now  they  have  the  first  right  to  plead  their  cause  before 
the  court,  and  that  w^as  everything  for  them ;  but  still  we  will  ga 
to  the  Hill  of  Laws,  and  set  our  suit  on  foot  against  them,  though 
that  will  now  stand  us  in  little  stead." 

Then  they  fared  to  the  Hill  of  Laws,  and  Eyjolf  summoned  them 
for  contempt  of  the  Thing. 

After  that  they  went  to  the  Fifth  Court. 

Now  we  must  say  that  when  Mord  and  Asgrim  came  to  the  Fifth 
Court,  Mord  took  witness  and  bade  them  listen  to  his  oath  and 
the  declaration  of  his  suit,  and  to  all  those  proofs  and  steps  which 
he  meant  to  bring  forward  against  Flosi  and  Eyjolf.  He  bade 
them  by  a  lawful  bidding  before  the  court,  so  that  the  judges  could 
hear  him  across  the  court. 

In  the  Fifth  Court  vouchers  had  to  follow  the  oaths  of  the  parties,, 
and  they  had  to  take  an  oath  after  them. 

Mord  took  witness.  "I  take  witness,"  he  said,  "to  this,  that  I 
take  a  Fifth  Court  oath.  I  pray  God  so  to  help  me  in  this  light  and 
in  the  next,  as  I  shall  plead  this  suit  as  I  know  to  be  most  truthful, 
and  just,  and  lawful.  I  believe  with  all  my  heart  that  Flosi  is 
truly  guilty  in  this  suit,  if  I  may  bring  forward  my  proofs ;  and 
I  have  not  brought  money  into  this  court  in  this  suit,  and  I  will 
not  bring  it.  I  have  not  taken  money,  and  I  will  not  take  it, 
neither  for  a  lawful  nor  for  an  unlawful  end." 

The  men  who  were  Mord's  vouchers  then  went  two  of  them 
before  the  court,  and  took  witness  to  this  —  "We  take  witness  that 


200  GENERAL    LITERATURE  [Part  I. 

we  take  an  oath  on  the  book,  a  lawful  oath ;  we  pray  God  so  to  help 
us  two  in  this  light  and  in  the  next,  as  we  lay  it  on  our  honour  that 
we  believe  with  all  our  hearts  that  Mord  will  so  plead  this  suit  as 
he  knows  to  be  most  truthful,  and  most  just,  and  most  lawful, 
and  that  he  hath  not  brought  money  into  this  court  in  this  suit 
to  help  himself,  and  that  he  will  not  offer  it,  and  that  he  hath  not 
taken  money,  nor  will  he  take  it,  either  for  a  lawful  or  unlawful 
end." 

Mord  had  summoned  nine  neighbours  who  lived  next  to  the 
Thingfield  on  the  inquest  in  the  suit,  and  then  Mord  took  witness, 
and  declared  those  four  suits  which  he  had  set  on  foot  against 
Flosi  and  Eyjolf ;  and  Mord  used  all  those  words  in  his  declaration 
that  he  had  used  in  his  summons.  He  declared  his  suits  for  out- 
lawry in  the  same  shape  before  the  Fifth  Court  as  he  had  uttered 
them  when  he  summoned  the  defendants. 

Mord  took  witness,  and  bade  those  nine  neighbours  on  the  in- 
quest to  take  their  seats  west  on  the  river  bank. 

Mord  took  witness  again,  and  bade  Flosi  and  Eyjolf  to  challenge 
the  inquest. 

They  went  up  to  challenge  the  inquest,  and  looked  narrowly  at 
them,  but  could  get  none  of  them  set  aside ;  then  they  went  away 
as  things  stood,  and  were  very  ill  pleased  with  their  case. 

Then  Mord  took  witness,  and  bade  those  nine  neighbours  whom 
he  had  before  called  on  the  inquest,  to  utter  their  finding,  and  to 
bring  it  in  either  for  or  against  Flosi. 

Then  the  neighbours  on  Mord's  inquest  came  before  the  court, 
and  one  uttered  the  finding,  but  all  the  rest  confirmed  it  by  their 
consent.  They  had  all  taken  the  Fifth  Court  oath,  and  they 
brought  in  Flosi  as  truly  guilty  in  the  suit,  and  brought  in  their 
finding  against  him.  They  brought  it  in  in  such  a  shape  before 
the  Fifth  Court  over  the  head  of  the  same  man  over  whose  head 
Mord  had  already  declared  his  suit.  After  that  they  brought  in 
all  those  findings  which  they  were  bound  to  bring  in  in  all  the  other 
suits,  and  all  was  done  in  lawful  form. 

Eyjolf,  Bolverk's  son  and  Flosi  watched  to  find  a  flaw  in  the  pro- 
ceedings, but  could  get  nothing  done. 

Then  Mord,  Valgard's  son  took  witness.  "I  take  witness," 
said  he,  "to  this,  that  these  nine  neighbours  whom  I  called  on 
these  suits  which  I  have  had  hanging  over  the  heads  of  Flosi, 
Thord's  son,  and  Eyjolf,  Bolverk's  son,  have  now  uttered  their 
finding,  and  have  brought  them  in  truly  guilty  in  these  suits." 

He  took  this  witness  for  his  own  part. 


Chap.  VI.]  NJALS   SAGA  201 

Again  Mord  took  witness.  "I  take  witness,"  he  said,  "to  this, 
that  I  bid  Flosi,  Thord's  son,  or  that  other  man  who  has  taken 
his  lawful  defence  in  hand,  now  to  begin  their  defence ;  for  now  all 
the  steps  and  proofs  have  been  brought  forward  in  the  suit,  sum- 
mons to  listen  to  oaths,  oaths  taken,  suit  declared,  witness  taken 
to  the  summons,  neighbours  called  on  to  take  their  seats  on  the 
inquest,  defendant  called  on  to  challenge  the  inquest,  finding 
uttered,  witness  taken  to  the  finding." 

He  took  this  witness  to  all  the  steps  that  had  been  taken  in  the 
suit. 

Then  that  man  stood  up  over  whose  head  the  suit  had  been 
declared  and  pleaded,  and  summed  up  the  case.  He  summed  up 
first  how  Mord  had  bade  them  listen  to  his  oath,  and  to  his  dec- 
laration of  the  suit,  and  to  all  the  steps  and  proofs  in  it ;  then  he 
summed  up  next  how  Mord  took  his  oath  and  his  vouchers  theirs ; 
then  he  summed  up  how  Mord  pleaded  his  suit,  and  used  the  very 
words  in  his  summing  up  that  Mord  had  before  used  in  declaring 
and  pleading  his  suit,  and  which  he  had  used  in  his  summons,  and 
he  said  that  the  suit  came  before  the  Fifth  Court  in  the  same  shape 
as  it  was  when  he  uttered  it  at  the  summoning.  Then  he  summed 
up  that  men  had  borne  witness  to  the  summoning,  and  repeated 
all  those  words  that  Mord  had  used  in  his  summons,  and  which 
they  had  used  in  bearing  their  witness,  "and  which  I  now," 
he  said,  "  have  used  in  my  summing  up,  and  they  bore  their  witness 
in  the  same  shape  before  the  Fifth  Court  as  he  uttered  them  at  the 
summoning."  After  that  he  summed  up  that  Mord  bade  the 
neighbours  on  the  inquest  to  take  their  seats,  then  he  told  next  of 
all  how  he  bade  Flosi  to  challenge  the  inquest,  or  that  man  who 
had  undertaken  this  lawful  defence  for  him ;  then  he  told  how  the 
neighbours  went  to  the  court,  and  uttered  their  finding,  and 
brought  in  Flosi  truly  guilty  in  the  suit,  and  how  they  brought 
in  the  finding  of  an  inquest  of  nine  men  in  that  shape  before  the 
Fifth-  Court.  Then  he  summed  up  how  Mord  took  witness  to  all 
the  steps  in  the  suit,  and  how  he  had  bidden  the  defendant  to  begin 
his  defence. 

After  that  Mord,  Valgard's  son  took  witness.  "  I  take  witness," 
he  said,  "to  this,  that  I  forbid  Flosi,  Thord's  son,  or  that  other 
man  who  has  undertaken  the  lawful  defence  for  him,  to  set  up  his 
defence ;  for  now  are  all  the  steps  taken  which  belong  to  the  suit, 
when  the  case  hag  been  summed  up  and  the  proofs  repeated." 

After  that  the  foreman  added  these  words  of  Mord  to  his  sum- 
ming up. 


202  GENERAL   LITERATURE  [Part  I. 

Then  Mord  took  witness,  and  prayed  the  judges  to  give  judg- 
ment in  this  suit. 

Then  Gizur  the  White  said,  "Thou  wilt  have  to  do  more  yet, 
Mord,  for  four  twelves  can  have  no  right  to  pass  judgment." 

Now  Flosi  said  to  Eyjolf,  "What  counsel  is  to  be  taken  now?" 

Then  Eyjolf  said,  "Now  we  must  make  the  best  of  a  bad  busi- 
ness ;  but  still  we  will  bide  our  time,  for  now  I  guess  that  they  will 
make  a  false  step  in  their  suit,  for  Mord  prayed  for  judgment  at 
once  in  the  suit,  but  they  ought  to  call  and  set  aside  six  men  out 
of  the  court,  and  after  that  they  ought  to  oifer  us  to  call  and  set 
aside  six  other  men,  but  we  will  not  do  that,  for  then  they  ought 
to  call  and  set  aside  those  six  men,  and  they  will  perhaps  overlook 
that;  then  all  their  case  has  come  to  naught  if  they  do  not  do 
that,  for  three  twelves  have  to  judge  in  every  cause." 

"Thou  art  a  wise  man,  Eyjolf,"  said  Flosi,  "so  that  few  can 
come  nigh  thee." 

Mord,  Valgard's  son  took  witness.  "I  take  witness,"  he  said 
"  to  this,  that  I  call  and  set  aside  these  six  men  out  of  the  court"  — 
and  named  them  all  by  name  —  "  I  do  not  allow  you  to  sit  in  the 
court ;  I  call  you  out  and  set  you  aside  by  the  rightful  custom  of 
the  Althing,  and  the  law  of  the  land." 

After  that  he  offered  Eyjolf  and  Flosi,  before  witnesses,  to  call 
out  by  name  and  set  aside  other  six  men,  but  Flosi  and  Eyjolf 
would  not  call  them  out. 

Then  Mord  made  them  pass  judgment  in  the  cause ;  but  when 
the  judgment  was  given,  Eyjolf  took  witness,  and  said  that  all 
their  judgment  had  come  to  naught,  and  also  everything  else  that 
had  been  done,  and  his  ground  was  that  three  twelves  and  one 
half  had  judged,  when  three  only  ought  to  have  given  judgment. 

"And  now  we  will  follow  up  our  suits  before  the  Fifth  Court," 
said  Eyjolf,  "and  make  them  outlaws." 

Then  Gizur  the  White  said  to  Mord,  Valgard's  son,  "Thou  hast 
made  a  very  great  mistake  in  taking  such  a  false  step,  and  this  is 
great  ill-luck ;  but  what  counsel  shall  we  now  take,  kinsman  As- 
grim  ?  "  says  Gizur. 

Then  Asgrim  said,  "  Now  we  will  send  a  man  to  my  son  Thorhall, 
and  know  what  counsel  he  will  give  us." 

144.  BATTLE  AT   THE  ALTHING 

Now  Snorri  the  Priest  hears  how  the  causes  stood,  and  then  he 
begins  to  draw  up  his  men  in  array  below  "the  Great  Rift,"  be- 


[AP.  VI.]  NJALS    SAGA  203 

reen  it  and  Hadbooth,  and  laid  down  beforehand  to  his  men  how 
they  were  to  behave. 

Now  the  messenger  comes  to  Thorhall,  Asgrim's  son,  and  tells 
him  how  things  stood,  and  how  Mord,  Valgard's  son  and  his  friends 
would  all  be  made  outlaws,  and  the  suits  for  manslaughter  be 
brought  to  naught. 

But  when  he  heard  that,  he  was  so  shocked  at  it  that  he  could 
not  utter  a  w^ord.  He  jumped  up  then  from  his  bed,  and  clutched 
ivith  both  hands  his  spear,  Skarphedinn's  gift,  and  drove  it  through 
his  foot ;  then  flesh  clung  to  the  spear,  and  the  eye  of  the  boil  too, 
for  he  had  cut  it  clean  out  of  the  foot,  but  a  torrent  of  blood  and 
matter  poured  out,  so  that  it  fell  in  a  stream  along  the  floor.  Now 
he  went  out  of  the  booth  unhalting,  and  walked  so  hard  that  the 
messenger  could  not  keep  up  with  him,  and  so  he  goes  until  he 
came  to  the  Fifth  Court.  There  he  met  Grim  the  Red,  Flosi's 
kinsman,  and  as  soon  as  ever  they  met,  Thorhall  thrust  at  him  with 
the  spear,  and  smote  him  on  the  shield  and  clove  it  in  twain,  but 
the  spear  passed  right  through  him,  so  that  the  point  came  out 
between  his  shoulders.     Thorhall  cast  him  off  his  spear. 

Then  Kari,  Solmund's  son  caught  sight  of  that,  and  said  to 
Asgrim,  "  Here,  now,  is  come  Thorhall  thy  son,  and  has  straightway 
slain  a  man,  and  this  is  a  great  shame,  if  he  alone  shall  have  the 
heart  to  avenge  the  burning." 

"That  shall  not  be,"  says  Asgrim,  "but  let  us  turn  on  them 
now." 

Then  there  was  a  mighty  cry  all  over  the  host,  and  then  they 
shouted  their  war-cries. 

Flosi  and  his  friends  then  turned  against  their  foes,  and  both 
sides  egged  on  their  men  fast. 

Kari,  Solmund's  son  turned  now  thither  where  Arni,  Kol's  son 
and  Hallbjorn  the  Strong  were  in  front,  and  as  soon  as  ever  Hall- 
bjorn  saw  Kari,  he  made  a  blow  at  him,  and  aimed  at  his  leg,  but 
Kari  leapt  up  into  the  air,  and  Hallbjorn  missed  him.  Kari 
turned  on  Arni,  Kol's  son  and  cut  at  him,  and  smote  him  on  the 
shoulder,  and  cut  asunder  the  shoulder  blade  and  collar-bone, 
and  the  blow  went  right  down  into  his  breast,  and  Arni  fell  down 
dead  at  once  to  earth. 

After  that  he  hewed  at  Hallbjorn  and  caught  him  on  the  shield, 
and  the  blow  passed  through  the  shield,  and  so  down  and  cut  off 
his  great  toe.  Holmstein  hurled  a  spear  at  Kari,  but  he  caught 
it  in  the  air,  and  sent  it  back,  and  it  was  a  man's  death  in  Flosi's 
band. 


204  GENERAL   LITERATURE  [Part  I. 

Thorgeir  Craggier  came  up  to  where  Hallbjorn  the  Strong  was  in 
front,  and  Thorgeir  made  such  a  spear-thrust  at  him  with  his  left 
hand  that  Hallbjorn  fell  before  it,  and  had  hard  work  to  get  on 
his  feet  again,  and  turned  away  from  the  fight  there  and  then. 
Then  Thorgeir  met  Thorwalld,  Kettle  Rumble's  son,  and  hewed  at 
him  at  once  with  the  axe,  "the  ogress  of  war,"  which  Skarphedinn 
had  owned.  Thorwalld  threw  his  shield  before  him,  and  Thorgeir 
hewed  the  shield  and  cleft  it  from  top  to  bottom,  but  the  upper 
horn  of  the  axe  made  its  way  into  his  breast,  and  passed  into  his 
trunk,  and  Thorwalld  fell  and  was  dead  at  once. 

Now  it  must  be  told  how  Asgrim,  Ellidagrim's  son,  and  Thor- 
hall  his  son,  Hjallti,  Skeggi's  son,  and  Gizur  the  White,  made  an 
onslaught  where  Flosi  and  the  sons  of  Sigfus  and  the  other  burners 
were ;  then  there  was  a  very  hard  fight,  and  the  end  of  it  was  that 
they  pressed  on  so  hard,  that  Flosi  and  his  men  gave  way  before 
them.  Gudmund  the  Powerful,  and  Mord,  Valgard's  son,  and 
Thorgeir  Craggeir,  made  their  onslaught  where  the  Axefirthers 
and  Eastfirthers,  and  the  men  of  Reykdale  stood,  and  there  too 
there  was  a  very  hard  fight. 

Kari,  Solmund's  son  came  up  where  Bjarni,  Broddhelgi's  son 
had  the  lead.  Kari  caught  up  a  spear  and  thrust  at  him,  and  the 
blow  fell  on  his  shield.  Bjarni  slipped  the  shield  on  one  side  of 
him,  else  it  had  gone  straight  through  him.  Then  he  cut  at  Kari 
and  aimed  at  his  leg,  but  Kari  drew  back  his  leg  and  turned  short 
round  on  his  heel,  and  Bjarni  missed  him.  Kari  cut  at  once  at 
him,  and  then  a  man  ran  forward  and  threw  his  shield  before 
Bjarni.  Kari  cleft  the  shield  in  twain,  and  the  point  of  the  sword 
caught  his  thigh,  and  ripped  up  the  whole  leg  down  to  the  ankle. 
That  man  fell  there  and  then,  and  was  ever  after  a  cripple  so  long 
as  he  lived. 

Then  Kari  clutched  his  spear  with  both  hands,  and  turned  on 
Bjarni  and  thrust  at  him ;  he  saw  he  had  no  other  chance  but 
to  throw  himself  down  sidelong  away  from  the  blow,  but  as 
soon  as  ever  Bjarni  found  his  feet,  away  he  fell  back  out  of  the 
fight. 

Thorgeir  Craggeir  and  Gizur  the  White  fell  on  there  where 
Holmstein,  the  son  of  Bersi  the  Wise,  and  Thorkel,  Geiti's  son  were 
leaders,  and  the  end  of  the  struggle  was,  that  Holmstein  and 
Thorkel  gave  way,  and  then  arose  a  mighty  hooting  after  them 
from  the  men  of  Gudmund  the  Powerful. 

Thorwalld,  Tjorfi's  son  of  Lightwater  got  a  great  wound,  he  was 
shot  in  the  forearm,  and  men  thought  that  Halldor,  Gudmund  the 


.VI.]  NJALS    SAGA  205 

iPowerful's  son  had  hurled  the  spear,  but  he  bore  that  wound  about 
with  him  all  his  life  long,  and  got  no  atonement  for  it. 

Now  there  was  a  mighty  throng.  But  though  we  here  tell  of 
some  of  the  deeds  that  were  done,  still  there  are  far  many  more  of 
which  men  have  handed  down  no  stories. 

Flosi  had  told  them  that  they  should  make  for  the  stronghold 
in  the  Great  Rift  if  they  were  worsted,  ''For  there,"  said  he, 
*Hhey  will  only  be  able  to  attack  us  on  one  side."  But  the  band 
which  Hall  of  the  Side  and  his  son  Ljot  led,  had  fallen  away  out 
of  the  fight  before  the  onslaught  of  that  father  and  son,  Asgrim 
and  Thorhall.  They  turned  down  east  of  Axewater,  and  Hall 
said,  ''This  is  a  sad  state  of  things  when  the  whole  host  of  men  at 
the  Thing  &ght,  and  I  would,  kinsman  Ljot,  that  we  begged  us  help 
even  though  that  be  brought  against  us  by  some  men,  and  that  we 
part  them.  Thou  shalt  wait  for  me  at  the  foot  of  the  bridge,  and 
I  will  go  to  the  booths  and  beg  for  help." 

"If  I  see,"  said  Ljot,  "that  Flosi  and  his  men  need  help  from  our 
men,  then  I  will  at  once  run  up  and  aid  them." 

"Thou  wilt  do  in  that  as  thou  pleasest,"  says  Hall,  "but  I  pray 
thee  to  wait  for  me  here." 

Now  flight  breaks  out  in  Flosi 's  band,  and  they  all  fly  west 
across  Axewater;  but  Asgrim  and  Gizur  the  White  went  after 
them  and  all  their  host. 


Then  Thorhall  said  to  his  father  Asgrim,  "  See  there  now  is 
Skapti,  Thorod's  son,  father." 

"I  see  him,  kinsman,"  said  Asgrim,  and  then  he  shot  a  spear  at 
Skapti,  and  struck  him  just  below  where  the  calf  was  fattest,  and 
so  through  both  his  legs.  Skapti  fell  at  the  blow,  and  could  not  get 
up  again,  and  the  only  counsel  they  could  take  who  were  by,  was 
to  drag  Skapti  flat  on  his  face  into  the  booth  of  a  turf-cutter. 

Then  Asgrim  and  his  men  came  up  so  fast  that  Flosi  and  his 
men  gave  way  before  them  south  along  the  river  to  the  booths  of 
the  men  of  Modruvale.  There  was  a  man  outside  one  booth  whose 
name  was  Solvi ;  he  was  boiling  broth  in  a  great  kettle,  and  had 
just  then  taken  the  meat  out,  and  the  broth  was  boiling  as  hotly 
as  it  could. 

Solvi  cast  his  eyes  on  the  Eastfirthers  as  they  fled,  and  they  were 
then  just  over  against  him,  and  then  he  said,  "Can  all  these 
cowards  who  fly  here  be  Eastfirthers,  and  yet  Thorkel,  Geiti's  son, 
he  ran  by  as  fast  as  any  one  of  them,  and  very  great  lies  have  been 


206  GENERAL   LITERATURE  [Part  I. 

told  about  him  when  men  say  that  he  is  all  heart,  but  now  no  one 
ran  faster  than  he." 

Hallbjorn  the  Strong  was  near  by  then,  and  said,  ^'Thou  shalt 
not  have  it  to  say  that  we  are  all  cowards." 

And  with  that  he  caught  hold  of  him,  and  lifted  him  up  aloft, 
and  thrust  him  head  down  into  the  broth-kettle.  Solvi  died  at 
once ;  but  then  a  rush  was  made  at  Hallbjorn  himself,  and  he  had 
to  turn  and  fly. 

Flosi  threw  a  spear  at  Bruni,  Haflidi's  son,  and  caught  him  at  the 
waist,  and  that  was  his  bane ;  he  was  one  of  Gudmund  the  Power- 
ful's  band. 

Thorstein,  Hlenni's  son  took  the  spear  out  of  the  wound,  and 
hurled  it  back  at  Flosi,  and  hit  him  on  the  leg,  and  he  got  a  great 
wound  and  fell ;  he  rose  up  again  at  once. 

Then  they  passed  on  to  the  Waterfirthers'  booth,  and  then  Hall 
and  Ljot  came  from  the  east  across  the  river,  with  all  their  band ; 
but  just  when  they  came  to  the  lava,  a  spear  was  hurled  out  of 
the  band  of  Gudmund  the  Powerful,  and  it  struck  Ljot  in  the 
middle,  and  he  fell  down  dead  at  once ;  and  it  was  never  known 
surely  who  had  done  that  manslaughter. 

Flosi  and  his  men  turned  up  round  the  Waterfirthers'  booth, 
and  then  Thorgier  Craggeir  said  to  Kari,  Solmund's  son,  ''Look, 
yonder  now  is  Eyjolf,  Bolverk's  son,  if  thou  hast  a  mind  to  pay 
him  off  for  the  ring." 

''That  I  ween  is  not  far  from  my  mind,"  says  Kari,  and  snatched 
a  spear  from  a  man,  and  hurled  it  at  Eyjolf,  and  it  struck  him  in 
the  waist,  and  went  through  him,  and  Eyjolf  then  fell  dead  to 
earth. 

Then  there  was  a  little  lull  in  the  battle,  and  then  Snorri  the 
Priest  came  up  with  his  band,  and  Skapti  was  there  in  his  company, 
and  they  ran  in  between  them,  and  so  they  could  not  get  at  one 
another  to  fight. 

Then  Hall  threw  in  his  people  with  theirs,  and  was  for  parting 
them  there  and  then,  and  so  a  truce  was  set,  and  was  to  be  kept 
throughout  the  Thing,  and  then  the  bodies  were  laid  out  and  borne 
to  the  church,  and  the  wounds  of  those  men  were  bound  up  who 
were  hurt. 

The  day  after  men  went  to  the  Hill  of  Laws.  Then  Hall  of  the 
Side  stood  up  and  asked  for  a  hearing,  and  got  it  at  once ;  and  he 
spoke  thus,  "Here  there  have  been  hard  happenings  in  lawsuits 
and  loss  of  life  at  the  Thing,  and  now  I  will  show  again  that  I  am 
little-hearted,  for  I  will  now  ask  Asgrim  and  the  others  who  take 


Chap.  VI.]  NJALS   SAGA  207 

the  lead  in  these  suits,  that  they  grant  us  an  atonement  on  even 
terms ;"  and  so  he  goes  on  with  many  fair  words. 

Kari,  Solmund's  son  said,  ''Though  all  others  take  an  atonement 
in  their  quarrels,  yet  will  I  take  no  atonement  in  my  quarrel; 
for  ye  will  wish  to  weigh  these  manslayings  against  the  burning, 
and  we  cannot  bear  that." 

In  the  same  way  spoke  Thorgeir  Craggeir. 

Then  Skapti,  Thorod's  son  stood  up  and  said,  *' Better  had  it 
been  for  thee,  Kari,  not  to  have  run  away  from  thy  father-in-law 
and  thy  brothers-in-law,  than  now  to  sneak  out  of  this  atonement." 

Then  Kari  sang : 

"Warrior  wight  that  weapon  wieldest 
Spare  thy  speering  why  we  fled, 
Oft  for  less  falls  hail  of  battle, 
Forth  we  fled  to  wreak  revenge ; 
Who  was  he,  fainthearted  foeman, 
,     Who,  when  tongues  of  steel  sung  high. 
Stole  beneath  the  booth  for  shelter. 
While  his  beard  blushed  red  for  shame?  " 


Then  there  was  great  laughter.  Snorri  the  Priest  smiled  and 
sang  this  between  his  teeth,  but  so  that  many  heard : 

**  Skill  hath  Skapti  us  to  tell 
Whether  Asgrim's  shaft  flew  well ; 
Holmstein  hurried  swift  to  fight, 
Thorstein  turned  him  soon  to  flight.'! 

Now  men  burst  out  in  great  fits  of  laughter. 

Then  Hall  of  the  Side  said,  ''All  men  know  what  a  grief  I  have 
suffered  in  the  loss  of  my  son  Ljot ;  many  will  think  that  he  would 
be  valued  dearest  of  all  those  men  who  have  fallen  here;  but  I 
will  do  this  for  the  sake  of  an  atonement  —  I  will  put  no  price 
on  my  son,  and  yet  will  come  forward  and  grant  both  pledges  and 
peace  to  those  who  are  my  adversaries.  I  beg  thee,  Snorri  the 
Priest,  and  other  of  the  best  men,  to  bring  this  about,  that  there 
may  be  an  atonement  between  us." 

Now  he  sits  him  down,  and  a  great  hum  in  his  favour  followed, 
and  all  praised  his  gentleness  and  goodwill. 

Then  Snorri  the  Priest  stood  up  and  made  a  long  and  clever 
speech,  and  begged  Asgrim  and  the  others  who  took  the  lead  in 
the  quarrel  to  look  towards  an  atonement. 

Then  Asgrim  said,  ''I  made  up  my  mind  when  Flosi  made  an 
inroad  on  my  house  that  I  would  never  be  atoned  with  him ;  but 


208  GENERAL   LITERATURE  [Part  I. 

now,  Snorri  the  Priest,  I  will  take  an  atonement  from  him  for  thy 
word's  sake  and  other  of  our  friends." 

In  the  same  way  spoke  Thorleif  Crow  and  Thorgrim  the  Big, 
that  they  were  willing  to  be  atoned,  and  they  urged  in  every  way 
their  brother  Thorgeir  Craggeir  to  take  an  atonement  also;  but 
he  hung  back,  and  says  he  would  never  part  from  Kari. 

Then  Gizur  the  White  said,  ''Now  Flosi  must  see  that  he  must 
make  his  choice,  whether  he  will  be  atoned  on  the  understanding 
that*  some  will  be  out  of  the  atonement." 

Flosi  says  he  will  take  that  atonement ;  "And  methinks  it  is  so 
much  the  better,"  he  says,  ''that  I  have  fewer  good  men  and  true 
against  me." 

Then  Gudmund  the  Powerful  said,  "  I  will  offer  to  handsel  peace 
on  my  behalf  for  the  slayings  that  have  happened  here  at  the 
Thing,  on  the  understanding  that  the  suit  for  the  burning  is  not  to 
fall  to  the  ground." 

In  the  same  way  spoke  Gizur  the  White  and  Hjallti,  Skeggi's  son, 
Asgrim,  Ellidagrim's  son  and  Mord,  Valgard's  son. 

In  this  way  the  atonement  came  about,  and  then  hands  were 
shaken  on  it,  and  twelve  men  were  to  utter  the  award ;  and  Snorri 
the  Priest  was  the  chief  man  in  the  award,  and  others  with  him. 
Then  the  manslaughters  were  set  off  the  one  against  the  other,  and 
those  men  who  were  over  and  above  were  paid  for  in  fines.  They 
also  made  an  award  in  the  suit  about  the  burning. 

Njal  was  to  be  atoned  for  with  a  triple  fine,  and  Bergthora  with 
two.  The  slaying  of  Skarphedinn  was  to  be  set  off  against  that 
of  Hauskuld  the  Whiteness  Priest.  Both  Grim  and  Helgi  were  to 
be  paid  for  with  double  fines;  and  one  full  man-fine  should  be 
paid  for  each  of  those  w^ho  had  been  burnt  in  the  house. 

No  atonement  was  taken  for  the  slaying  of  Thord,  Kari's- 
son. 

It  was  also  in  the  award  that  Flosi  and  all  the  burners  should  go 
abroad  into  banishment,  and  none  of  them  was  to  sail  the  same 
summer  unless  he  chose ;  but  if  he  did  not  sail  abroad  by  the  time 
that  three  winters  were  spent,  then  he  and  all  the  burners  were  to 
become  thorough  outlaws.  And  it  was  also  said  that  their  out- 
lawry might  be  proclaimed  either  at  the  Harvest-Thing  or  Spring- 
Thing,  whichever  men  chose ;  and  Flosi  was  to  stay  abroad  three 
winters. 

As  for  Gunnar,  Lambi's  son,  and  Grani,  Gunnar's  son.  Glum, 
Hilldir's  son,  and  Kol,  Thorstein's  son,  they  were  never  to  be 
allowed  to  come  back. 


Chap.  VI.]  NJALS   SAGA  209 

Then  Flosi  was  asked  if  he  would  wish  to  have  a  price  put  upon 
his  wound,  but  he  said  he  would  not  take  bribes  for  his  hurt. 

Eyjolf,  Bolverk's  son  had  no  fine  awarded  for  him,  for  his  un- 
fairness and  wrongfulness. 

And  now  this  settlement  and  atonement  was  handselled  and  was 
well  kept  afterwards. 

Asgrim  and  his  friends  gave  Snorri  the  priest  good  gifts,  and  he 
had  great  honour  from  these  suits. 

Skapti  got  a  fine  for  his  hurt. 


Now  it  must  be  said  that  Hall  of  the  Side  had  suffered  his  son 
to  fall  without  a  fine,  and  did  that  for  the  sake  of  an  atonement, 
but  then  the  whole  host  of  men  at  the  Thing  agreed  to  pay  a  fine 
for  him,  and  the  money  so  paid  was  not  less  than  eight  hundred 
in  silver,  but  that  was  four  times  the  price  of  a  man ;  but  all  the 
others  who  had  been  with  Flosi  got  no  fines  paid  for  their  hurts, 
and  were  very  ill  pleased  at  it. 


PART   II 
MODERN  OBSERVATIONS  OF  RETARDED  PEOPLES 

Chapter  VII 

THE  URABUNNA  TRIBE 

By  Baldwin  Spencer  and  F.  J.  Gillbn. 

Chapter  VIII 

THE   POINT   BARROW   ESKIMO 

By  John  Murdoch. 

Chapter  IX 

THE   SERI   INDIANS 
By  W  J  McGeb. 

Chapter  X 

WYANDOT   GOVERNMENT 
By  J.  W.  Powell. 

• 

Chapter  XI 

KAFIR  LAW 

Section  1.  The  Amaxosa  Tribes 

By  Rev.  H.  H.  Dugmore. 

Section  2.  Tambookie  Usages 
By  Warner. 

Chapter  XII 

FANTI   CUSTOMARY   LAW 
By  John  M.  Sarbah. 


Chapter  VII 

THE    URABUNNA   TRIBES 

1.  SOCIAL  ORGANIZATION 

In  the  great  majority  of  Australian  tribes,  but  not  in  all,  there 
is  a  very  definite  social  organisation,  which  term  we  use  in 
connection  only  with  the  division  of  the  tribe  into  two  (or  more) 
exogamous,  intermarrying  groups  without  reference  to  the 
presence  or  absence  of  a-totemic  system.  The  two  systems 
have  become  associated  together  in  various  ways  in  different 
tribes,  but  are  perfectly  distinct  from  one  another  in  origin  and 
significance. 

We  can  recognise  three  important  types  of  social  organisation 
in  the  tribes  which  occupy  the  country  extending  from  Lake  Eyre 
in  the  south  to  the  Gulf  of  Carpentaria  in  the  north.  In  the  first, 
which  exists  amongst  the  Dieri  and  Urabunna  tribes,  there  are 
only  two  main  exogamous  groups  called  respectively,  in  the  case  of 
the  latter,  Matthurie  and  Kirarawa.  We  have  on  a  previous  occa- 
sion, dealt  more  or  less  in  detail  with  this,  but,  for  the  purpose  of 
comparison,  and  of  giving  a  general  account  of  the  central  tribes, 
we  will  once  more  briefly  ref^r  to  the  Urabunna  tribe  as  a  typical 
example  of  a  tribe  in  which  descent  is  counted  in  the  female  line, 
and  in  which  division  has  not  proceeded  beyond  the  formation  of 
the  two  original  exogamous  moieties.^ 

In  the  Urabunna  tribe  a  Matthurie  man  must  marry  a  Kirarawa 

1  [Reprinted  with  the  consent  of  The  Macmillan  Company,  New  York, 
from  "The  Northern  Tribes  of  Central  Australia"  (1904),  by  Baldwin 
Spencer,  M.A,,  F.R.S.,  sometime  Fellow  of  Lincoln  College,  Oxford, 
Professor  of  Biology  in  the  University  of  Melbourne,  and  F.  J.  Gillen, 
Special  Magistrate  and  Sub-protector  of  Aborigines,  South  Australia. 
This  work  is  supplementary  to  the  "Native  Tribes  of  Central  Australia" 
published  by  the  same  authors  in  1899.] 

2  In  this  account  we  use  the  following  terms  :  (a)  moiety,  indicating 
the  two  original  exogamous  divisions ;  (b)  class,  the  two  divisions  into 
which  each  moiety  is  usually  divided ;  (c)  subclass,  the  two  divisions  into 
which  in  certain  tribes  each  class  is  divided.  We  purposely  avoid  the 
terms  phratry,  gens,  clan,  etc.,  as  liable  to  be  misleading. 

213 


214  RETARDED   PEOPLES  [Part  II. 

woman,  and  their  children  pass  into  the  kirarawa  moiety.  Vice 
versa  a  Kirarawa  man  must  marry  a  Matthurie  woman.  A 
Matthurie  man  may  not,  however,  marry  any  and  every  Kirarawa 
woman.  In  the  first  place,  men  of  one  totem  can  only  marry 
women  of  another  special  totem. ^  For  example,  a  Matthurie  who 
belongs  to  the  dingo  totem  must  marry  a  Kirarawa  of  the  water- 
hen  totem,  so  that  we  may  represent  the  marriage  and  descent  in 
the  Urabunna  by  the  following  diagram,  in  which  the  letter  "  m  '* 
represents  the  man  and  ''  i"  the  woman. 

m.   Dingo  Matthurie 

marries 

f.   Water-hen  Kirarawa 

m.  Water-hen  Kirarawa  f.  Water-hen  Kirarawa 
marries  marries 

f.  Dingo  Matthurie  m.  Dingo  Matthurie 

m.  or  f.  Dingo  Matthurie  m.  or  f.  Water-hen  Kirarawa 

Further  still,  a  dingo  man  can  only  have  assigned  to  him  as 
wife  a  woman  who  belongs  to  one  out  of  certain  groups  amongst 
the  water-hens.  The  members  of  the  latter  group  stand  to  him  in 
one  or  other  of  the  following  relationships :  (1)  Nauilli,  father's 
sister;  (2)  Biaka,  children  or  brother's  children;  (3)  Apillia^ 
mother's  younger  brother's  daughters ;  (4)  Nupa,  mother's  elder 
brother's  daughter.  It  must  be  remembered  of  course  that  whilst, 
for  the  sake  of  convenience,  we  use  the  English  terms  there  is  no 
equivalence  whatever  between  the  terms  nia,  nuthi,  and  luka  and 
those  respectively  of  father,  brother,  mother,  by  which  we  trans- 
late them.  The  native  terms  all  refer  to  groups  of  individuals  and 
not  to  the  individual.  Amongst  these  individuals  there  are  women 
of  three  different  levels  of  generation  —  the  nauilli  belong  to  that 
of  the  father,  the  hiaka  to  younger,  and  the  apillia  and  nupa  to  the 
same  generation  as  the  individual  concerned,  and  it  is  from  amongst 
these  that  the  woman  must  come  with  whom  it  is  lawful  for  him 
to  have  marital  relations.  He  can  only  marry  women  who  stand 
to  him  in  the  relationship  of  nupa  —  that  is,  are  the  children  of  his 
mother's  elder  brothers,  blood  or  tribal.  A  simple  genealogical 
tree  will  make  the  matter  clear.  The  Kirarawa  man  numbered 
8  can  only  marry  a  woman  who  stands  to  him  in  the  relation- 
ship of  the  one  numbered  7.     She  is  his  nupa;  the  woman  num- 

^  This  appears  to  be  the  case  in  the  northern  part  of  the  tribe. 


Chap.  VII,  §  1.]  THE   URABUNNA  TRIBE  215 

bered  9   is  his  apillia,  and  he  may  not  have  marital  relations 
with  her. 

1.   Matthurie,  f.  2.   Matthurie,  m.  3.   Matthurie,  f. 

4.   Kirarawa,  m.  5.   Kirarawa,  f.  6.   Kirarawa,  m. 

I  .  .  I  ■  I 

7.   Matthurie,  f.  8.   Kirarawa,  m.  9.   Matthurie,  f. 

7.   Matthurie,  f. 

The  mother  of  a  man's  wife  is  nauilli,  and  she  is  mura  to  him 
and  he  to  her,  and  they  must  not  speak  to  one  another.  Every 
man  has  one  or  more  of  these  nupa  women  who  are  especially 
attached  to  him  and  live  with  him  in  his  own  camp,  but  there  is  no 
such  thing  as  one  man  having  the  exclusive  right  to  one  woman ;  the 
elder  brothers  or  nuthi  of  the  woman,  who  decide  the  matter,  will 
give  one  man  a  preferential  right,  but  at  the  same  time  they  will 
give  other  men  of  the  same  group  to  which  he  belongs  —  that  is, 
men  who  stand  in  the  same  relationship  to  the  woman  as  he  does  — 
a  secondary  right,  and  such  nupa  women  to  whom  a  man  has  the 
legal  right  of  access  are  spoken  of  as  his  piraungaru.  A  woman 
may  be  piraungaru  to  a  number  of  men  and,  as  a  general  rule, 
men  and  women  who  are  piraungaru  to  one  another  are  to  be  found 
living  together  in  groups.  As  we  have  said  before,  "individual 
marriage  does  not  exist  either  in  name  or  in  practice  amongst  the 
Urabunna  tribe.''  ^     In  this  tribe  we  have  :  — 

(1)  A  group  of  men  all  of  whom  belong  to  one  moiety  of  the 
tribe  and  are  regarded  as  the  nupas,  or  possible  husbands,  of  a 
group  of  women  who  belong  to  the  other  moiety  of  the  tribe. 

(2)  One  or  more  women  specially  allotted  to  one  particular  man, 
each  standing  in  the  relationship  of  nupa  to  the  other,  but  no  man 
having  exclusive  right  to  any  one  woman — only  a  preferential  right. 

(3)  A  group  of  men  who  stand  in  the  relationship  of  piraungaru 
to  a  group  of  women,  selected  from  amongst  those  to  whom  they 
are  nupa.  In  other  words,  a  group  of  women  of  one  designation 
have,  normally  and  actually,  marital  relations  with  a  group  of  men 
of  another  designation. 

There  is  no  evidence  of  any  kind  to  show  that  the  practice  in  the 
Dieri  and  Urabunna  tribes  is  an  abnormal  development.  The 
organisation  of  these  tribes,  amongst  whom  the  two  exogamous 
intermarrying  groups  still  persist  —  groups  which  in  other  tribes 
of  the  central  area  have  been  split  into  four  or  eight  —  indicate 
1  "Native  Tribes  of  Central  Australia,"  p.  63  (1899). 


216  RETARDED   PEOPLES  [Part  II. 

their  retention  of  ancient  customs  which  have  become  modified  in 
tribes  such  as  the  Arunta  and  Warramunga,  though  amongst 
them  we  find  traces  of  customs  pointing  back  to  conditions  such 
as  still  persist  amongst  the  Urabunna.  If  they  were  abnormal 
developments  then  there  could  not  possibly  be  found  the  remark- 
able but  very  instructive  gradation  from  the  system  of  individual 
marriage  as  developed  amongst  many  Australian  tribes  and  the 
undoubted  exercise  of  group  marital  relations  which  is  found  in  the 
Dieri  and  the  Urabunna. 

In  regard  to  marital  relations  it  may  be  said  that  the  Central 
Australian  native  has  certain  women,  members  of  a  particular 
group,  with  whom  it  is  lawful  for  him  and  for  other  men  also  to  have 
such  relations.  In  the  tribes  with  the  simplest  and  undoubtedly 
the  most  primitive  organisation  these  women  are  many  in  number. 
They  all  belong  to  a  certain  group,  and  in  the  Urabunna  tribe  for 
example,  a  group  of  men  actually  does  have,  continually  and  as  a 
normal  condition,  marital  relations  with  a  group  of  women.  This 
state  of  affairs  has  nothing  whatever  to  do  with  polygamy  any 
more  than  it  has  with  polyandry.  It  is  simply  a  question  of  a 
group  of  men  and  a  group  of  women  who  may  lawfully  have  what 
we  call  marital  relations.  There  is  nothing  whatever  abnormal 
about  it,  and  in  all  probability  this  system  of  what  has  been  called 
group  marriage,  serving  as  it  does  to  bind  more  or  less  closely 
together  groups  of  individuals  who  are  mutually  interested  in  one 
another's  welfare,  has  been  one  of  the  most  powerful  agents  in  the 
early  stages  of  the  upward  development  of  the  human  race. 


2.   MARRIAGE  CUSTOMS 

Except  in  the  Urabunna  tribe,  where  there  is  actually  group 
marriage  in  existence,  the  system  of  individual  wives  prevails  — 
modified,  however,  by  the  practice  of  customs  according  to  which, 
at  certain  times,  much  wider  marital  relations  are  allowed.  As  we 
have  pointed  out  before,^  the  fundamental  feature  of  the  marital 
relations  in  all  of  these  tribes  is  the  existence  of  intermarrying 
groups  of  men  and  women.  In  the  Urabunna  tribe  group  marriage 
actually  exists  at  the  present  day,  a  group  of  men  of  a  certain 
designation  having,  not  merely  nominally  but  in  actual  reality, 
and  under  normal  conditions,  marital  relations  with  a  group  of 
women  of  another  special  designation.     In  all  other  tribes  we  find 

1 "  Native  Tribes  of  Central  Australia,"  p.  98,  et  seq. 


Chap.  VII,  §  2.]  THE    URABUNNA  TRIBE  •  217 

that  every  man  of  a  particular  group  is  lawfully  the  husband  of 
every  woman  of  another  particular  group,  having  no  name  whereby 
he  distinguishes  any  one  or  more  of  the  women  of  that  group,  who 
may  have  been  specially  allotted  to  him,  from  any  of  the  others ; 
or,  in  the  same  way,  any  name  by  w^hich  he  distinguishes  the 
children  of  these  w  omen  from  those  of  all  the  other  women  of  the 
group. 

Whilst  there  is  individual  marriage  from  the  Arunta  tribe  north- 
wards across  the  continent  to  the  Gulf  of  Carpentaria  there  are,  in 
actual  practice,  frequent  occasions  when  the  marital  relations  are  of 
a  much  wider  nature.  There  are  indeed  what  may  be  regarded  as 
three  distinct  grades  of  marital  relationships.  In  the  first  in- 
stance there  is  the  normal  state  of  affairs  w^hen  a  woman  is  the 
property  of  one  man,  who  however  can,  and  does,  lend  her  privately 
to  other  men,  —  provided,  how^ever,  that  they  belong  to  her  group 
of  lawful  husbands,  to  anyone  of  whom,  but  to  no  one  else,  he  may 
lend  her  under  ordinary  circumstances.  In  the  second  place  we 
have  the  wider  relations  existing  at  the  time  of  marriage,  when 
men  to  whom,  under  ordinary  circumstances,  she  is  strictly  tabooed 
have  access  to  her.  The  particular  men  vary  from  tribe  to  tribe, 
but  in  every  case,  in  addition  to  representatives  of  one  or  more 
forbidden  groups,  the  men  w^ho  belong  to  the  group  of  her  husbands 
always  have  [the  right  of  access].  At  this  particular  time,  when 
the  woman  is  being  handed  over  to  one  man,  there  takes  place  very 
clearly  the  recognition  of  the  group  right,  and  probably  the  recogni- 
tion of  a  wider  right  still.  In  the  third  place  we  have  the  very  wide 
relations  in  connection  with  the  performance  of  ceremonies  and  the 
sending  out  of  messengers  as  described  above  [in  the  original 
work].  In  a  few  special  cases  the  lending  of  lubras  on  these 
occasions  is  very  clearly  in  the  nature  of  a  return  for  some  service 
rendered,  but  no  such  explanation  is  possible  in  the  majority  of 
cases.  At  some  time  or  another  every  man  has  to  send  his  wife 
for  the  use  of  other  men  of  various  classes  who  are  performing 
ceremonies,  and  whose  wives,  in  their  turn,  are  offered  to  him. 
During  the  performance  of  some  of  these  ceremonies  there  is  the 
very  greatest  license,  a  man  even  having  relations  with  his  mura 
woman,  w^ho,  under  ordinary  circumstances,  is  most  strictly 
tabooed  to  him,  and  this  without  her  husband  being  in  any  way 
indebted  to  him.  Every  one,  at  different  times,  is  obliged  to  relin- 
quish, for  the  time  being,  his  sole  right  to  the  woman  or  women  who 
have  been  allotted  to  him. 


218  RETARDED   PEOPLES  [Part  II. 

3.   TOTEMS 

We  have  already  pointed  out  "  that  there  is  a  very  great  differ- 
ence, so  far  as  matter  connected  with  the  totems  are  concerned, 
between  the  true  central  and  the  southern-central  tribes  who 
come  into  contact  with  one  another  a  little  to  the  north-west  of 
Lake  Eyre"  and  that  it  looks  very  much  as  if  in  the  latter  locality 
"we  had  a  meeting-place  of  two  sets  of  tribes,  which  migrated 
southwards,  following  roughly  parallel  courses  —  one  across  the 
center  of  the  continent,  while  the  other  followed  down  the  course 
of  the  main  streams  on  the  east  and  then  turned  slightly  north- 
ward on  the  west  side  of  Lake  Eyre ;  or  possibly  in  their  southern 
wanderings  part  of  this  eastern  group  spread  round  the  north  and 
part  round  the  south  end  of  the  lake."  ^  These  two  very  distinct 
series  of  tribes,  which  may  be  typified  respectively  by  the  Arunta 
and  Urabunna,  differ  very  markedly  from  one  another  in  the  fact 
that  in  one  we  have  descent  counted  in  the  paternal  and  in  the 
other  in  the  maternal  line.  In  the  northern  Urabunna  for  example, 
there  are  a  number  of  totems  belonging  exclusively  to  the  Matt- 
hurie  moiety  and  others  to  the  Kirarawa,  and  it  therefore  follows 
that  a  Matthurie  man  of  one  totem  may  only  marry  a  woman  of 
another.  Thus  a  dingo  Matthurie  man  marries  a  water-hen 
Kirarawa  woman,  and  the  children,  following  the  mother,  are  all 
water-hens.  Descent  in  this  tribe  is  strictly,  maternal,  both  as 
regards  class  and  totem.  In  the  Arunta  on  the  other  hand,  —  and 
this  is  equally  true  of  all  the  other  tribes  northwards  to  the  gulf,  — 
the  line  of  descent  so  far  as  class  is  concerned,  is  paternal.^  That 
of  the  totem  changes  gradually  as  we  pass  northwards,  from  the 
curious  system  met  with  in  the  Arunta,  where  there  is  no  necessary 
relationship  of  any  kind  between  that  of  children  and  parents,  to 
that  of  the  Binbinga,  Anula,  and  Mara  tribes,  where  the  descent 
of  the  totem  is  as  strictly  paternal  as  it  is  in  the  case  of  the  class. 

This  change  in  the  descent  of  the  totem  is  one  of  very  consider- 
able interest,  as  it  shows  that  there  is  by  no  means  the  radical 
difference  which,  on  the  surface,  there  would  appear  to  be,  between 
two  tribes  in  one  of  which,  for  example,  a  man  and  a  woman  might 
both  of  them  be  witchetty  grubs  and  their  children  wild  cats, 
witchetty  grubs,  evening  stars,  yams,  kangaroos,  or  indeed  mem- 
bers of  any  totemic  group,  and  another  tribe  in  which  the  parents 
must  belong  to  distinct  totemic  groups,  and  their  children  always 

*  "Native  Tribes  of  Central  Australia,"  p.  113. 

^  In  most  eases  indirectly  paternal,  but  in  some  more  directly  paternal. 


Chap.  VII,  §  3.]  THE  URABUNNA  TRIBE  *  219 

follow  that  of  the  father.  Taking  actual  examples  from  tribes, 
situated,  one  in  the  south  and  one  in  the  far  north  we  find  that 
in  the  former  (Arunta)  the  man  is  a  little  hawk ;  wife  No.  1  is  rat ; 
daughter,  witchetty  grub ;  wife  No.  2  is  kangaroo ;  no  children ; 
wife  No.  3  is  lizard ;  two  daughters,  one  emu,  the  other  water-hen. 
In  the  second  tribe  (Binbinga),  the  father  is  a  snake;  his  father 
was  a  snake;  wife  No.  1  is  a  big  Hzard;  one  son,  snake;  one 
daughter,  snake ;  wife  No.  2,  emu ;  one  son,  snake ;  two  daughters 
snakes. 

In  every  tribe  without  exception  there  exists  a  firm  belief  in  the 
reincarnation  of  ancestors.^  Emphasis  must  be  laid  on  the  fact 
that  this  beUef  is  not  confined  to  tribes  such  as  the  iVrunta,  Warra- 
munga,  Binbinga,  Anula,  and  others,  amongst  whom  descent  is 
counted  in  the  male  line,  but  is  found  just  as  strongly  developed 
in  the  Urabunna  tribe,  in  which  descent,  both  of  class  and  totem, 
is  strictly  maternal. 

In  certain  respects  the  beliefs  of  the  Urabunna  tribe,  which 
inhabits  the  country  to  the  south  of  the  Arunta,  bear  the  same 
relationship  to  those  of  the  Arunta  nation  as  do  the  beliefs  of  the 
Warramunga  tribe  in  the  far  north.  Briefly  stated  the  Urabunna 
belief  is  as  follows  :  —  In  the  Alcheringa  (the  Urabunna  term  for 
this  is  Ularaka)  there  existed  at  first  a  comparatively  small  num- 
ber of  individuals  who  were  half-human,  half-animal  or  plant. 
How  they  arose  no  one  knows.  They  lived  in  the  Alcheringa,  and 
behind  this  it  is  useless  to  attempt  to  pry.  They  are  the  exact 
equivalents  of  the  Alcheringa  ancestors  of  the  Arunta.  These 
semi-human  creatures  were  endowed  with  far  greater  powers 
than  any  living  men  or  women  possess.  They  could  walk  about 
either  on  the  earth  or  beneath  it,  or  could  fly  through  the  air. 
They  were  the  ancestors  of  the  different  totemic  groups.  A  great 
carpet  snake  individual  gave  rise  to  the  carpet  snake  group,  two 
jew  lizards  gave  rise  to  the  jew  lizard  group,  one  or  two  rain  crea- 
tures gave  rise  to  the  rain  group,  and  so  on.  The  belief  difters 
from  that  of  the  Arunta,  and  is  in  agreement  with  that  of  the 
Warramunga  in  the  fact  that  the  ancestors  of  each  group  are  few  in 
number,  and  that  we  hear  nothing  of  the  carrying  of  Churinga  with 
which  their  spirit  parts  were  associated. 

These  old  semi-human  ancestors  wandered  about  all  over  the 
country  now  occupied  by  the  Urabunna  tribe,  performing  sacred 

1  Roth  has  shown  that  the  idea  of  conception  not  being  necessarily 
due  to  sexual  intercourse  exists  amongst  certain  tribes  in  Queensland. 
See  "North  Queensland  Ethnography,"  Bulletin  No.  5,  p.  22. 


220  RETARDED   PEOPLES  [Part  II.  , 

ceremonies,  and,  when  they  did  this,  they  deposited  in  the  ground, 
or  in  some  natural  feature  such  as  a  rock  or  a  water-pool,  which 
arose  to  mark  the  spot,  a  number  of  spirit  individuals  called  mai- 
aurli.  After  a  time  some  of  these  became  changed  into  men  and 
women,  who  formed  the  first  series  of  totem  groups.  Thus  some  of 
the  mai-aurli  left  behind  by  the  carpet  snake  ancestor  changed 
into  carpet  snake  men  and  women,  some  of  those  left  behind  by  the 
lizards  changed  into  lizard  men  and  women,  and  so  on  through  the 
various  totemic  groups.  Since  that  early  time,  when  the  various 
totem  groups  were  thus  instituted,  the  mai-aurli  have  been  con- 
tinually undergoing  reincarnation. 

The  tradition  concerned  with  two  snakes  called  Kurnmara, 
who  belonged  to  the  Kirarawa  moiety,  will  serve  to  illustrate  the 
Urabunna  belief.  In  the  Alcheringa  a  green  and  a  brown  snake 
arose.  At  first  they  "sat  down,"  as  the  natives  say,  inside  a 
water-hole  called  Yanidi,  making  furstring.  Coming  out  they 
started  away  on  their  wanderings  and  came  to  Mura-murara, 
where  they  made  string,  ate  grass  seed,  and  left  mai-aurli  or  spirit 
children  behind  them.  These  mai-aurli  came  out  from  their 
bodies.  Looking  back  they  saw  smoke  in  the  direction  of  the 
Macumba  River,  where  the  country  was  all  on  fire.  As  they 
travelled  along  the  brown  snake  took  the  lead,  the  green  following 
behind.  It  was  these  two  snakes  who,  during  their  wanderings, 
made  all  of  the  mound  springs  which  are  now  so  characteristic 
of  this  part  of  the  country.  Amongst  others  they  made  those  of 
Kaltikaltinga,  the  so-called  Thirty  Mile  Spring,  the  Fountain 
Spring,  where  they  again  made  furstring  and  ate  grass  seed,  bushes 
arising  to  mark  the  spot  where  they  threw  the  stalks  away.  Wan- 
dering on  they  made  Akundunda  Spring,  and  at  what  is  now  called 
Mount  Margaret  Hill  they  built  two  stone  shelters,  one  snake 
sitting  down  in  each.  As  they  walked  along  they  hollowed  out 
the  course  of  the  Umbinga  Creek,  and  made  the  springs  called  by 
white  men  Brinkley,  Loddon,  and  Strangways.  After  making 
some  more  they  retraced  their  steps,  and  the  green  snake  said  to  the 
brown  one,  "I  am  Kirarawa,  you  are  Matthurie."  They  left 
spirits  or  mai-aurli  at  all  of  their  camping  places.  Finally,  at  a 
place  called  Kirri-katjirina,  the  green  snake  caught  sight  of  a 
yellow  one  and  gave  chase  to  it.  It  dived  down  into  the  ground, 
the  green  snake  went  down  close  by,  and  the  brown  one  in  another 
spot.  Three  springs  arose  to  mark  the  place  where  they  finally 
disappeared. 

It  is  the  mai-aurli  or  spirit  children  left  behind  by  animal  or 


Chap.  VII,  §3.]  THE   URABUNNA  TRIBE  221 

semi-human  ancestors  such  as  these  snakes,  who  are  now  continu- 
ally undergoing  reincarnation.  In  certain  cases  one  particular 
spot  is  supposed  to  be  inhabited  by  spirits  of  one  special  totem, 
but  in  other  cases  those  of  two  or  more  totems  may  inhabit  the 
same  place.^  Thus,  close  by  our  camp,  there  was  a  large  group  of 
granite  boulders  which  arose  in  the  Alcheringa  to  mark  the  place 
where  the  ancestors  of  the  pigeon  group  danced  and  played  about. 
Of  these  boulders  one  represents  an  old  male  and  another  a  female 
ancestor.  The  rocks  are  supposed  to  be  inhabited  solely  by  pigeon 
spirits  which  emanated  from  the  bodies  of  the  two  ancestors.  On 
the  other  hand  there  was  a  water-pool,  a  quarter  of  a  mile  away, 
inhabited  by  spirits  left  there  by  emu,  rain,  and  a  grub  ancestor. 
Sometimes  there  appears  to  be  a  special  relationship  between 
totem  groups  thus  associated  with  one  spot — as,  for  example,  in  the 
case  of  one  water-pool  where  there  are  spirits  belonging  to  the  fol- 
lowing totemic  groups  :  —  larwinnia  (mosquito),  Momo  (blow  fly), 
Murilla  (march  fly),  and  Kudnapintjinara  (sand  fly). 

It  will  thus  be  evident  that  in  the  Urabunna  tribe,  which  is  a 
typical  example  of  those  Australian  tribes  in  which  there  are  names 
for  only  the  two  moieties  (Kirarawa  and  Matthurie,  or  Kararu  and 
Matteri)  and  no  subclasses,  and  in  which  descent  is  counted  in  the 
female  line,  we  have  a  very  definite  belief  in  the  existence  of  spirit 
individuals  who  are  derived  from  ancestral  totemic  ancestors  and 
are  constantly  undergoing  reincarnation.  Every  living  individual 
is  the  reincarnation  of  a  mai-aurli  or  spirit  who  emanated  from  the 
body  of  an  Alcheringa  ancestor. 

In  the  Urabunna  just  as  in  the  tribes  north  of  the  Arunta  nation, 
the  totems  are  strictly  divided  between  the  two  moieties  of  the 
tribe.  In  these  northern  tribes  descent  both  of  class  and  totem  is 
strictly  paternal,  and  as  we  shall  describe  shortly,  a  spirit  child 
is  not  supposed  to  go  into  any  woman  unless  she  be  the  wife  of  a 
man  of  the  same  moiety  and  totem  as  the  spirit.  In  the  Urabunna 
the  ideas  of  the  natives  in  regard  to  this  point  are  very  different. 
The  child  must  belong  to  the  same  moiety  and  totem  as  its  mother, 
but  they  have  the  curious  belief  that  in  each  successive  reincarna- 
tion the  child  changes  its  sex,  moiety,  and  totem. 

Suppose,  for  example,  a  Kirarawa  man  of  the  emu  totem  dies. 
His  spirit,  which  in  the  case  of  a  dead  man  they  call  kumpira,  goes 
back  to  the  place  at  which  it  was  left  by  the  ancestor  in  the  Alcher- 

1  These  local  totem  centres  are  called  paltinta  by  the  Urabunna.  This 
term  is  the  equivalent  of  oknanikilla  in  the  Arunta.  The  spot  at  which 
the  great  ancestor  finally  went  down  into  the  earth  is  called  bara-kopuqua. 


222  RETARDED   PEOPLES  [Part  II. 

inga.  Here  it  remains  for  some  time,  but  sooner  or  later  it  is 
reincarnated.  This  spirit  of  the  former  emu  Kirarawa  man  will 
not  go,  so  they  say,  into  a  Kirarawa  woman ;  if  it  were  to  do  so  it 
would  either  be  born  prematurely  and  die,  or  would  cause  the 
death  of  the  mother.^  When  undergoing  reincarnation  it  can  only 
enter  the  body  of  a  Matthurie  woman  who,  of  necessity,  belongs 
to  another  totem,  and  thus  at  each  reincarnation  the  individual 
changes  both  his  or  her  moiety  and  totem.  Not  only  is  this  so, 
but  it  also  changes  its  sex  —  a  belief  which  is  also  met  with  in  the 
Warramunga  tribe.  Every  individual  goes  back  after  death  in 
spirit  form  to  the  spot  at  which  it  was  left  in  the  Alcheringa  by  the 
ancestor  of  the  totem.  If,  for  example,  it  were  originally  a  pigeon 
spirit,  then  it  will  go  back  into  the  rocks  at  the  spot  where  the 
pigeon  ancestors  performed  ceremonies  in  the  Alcheringa  and  left 
spirits  behind.  In  the  course  of  ages  any  single  individual  can 
run  the  whole  gamut  of  the  totems,  alternating  from  side  to  side  of 
the  tribe,  but  always  returning  at  death  to  its  original  home.^ 

The  change  of  sex  may  possibly  be  associated  with  that  of  the 
moiety.  At  all  events  the  result  is  that  the  children  of  the  suc- 
cessive reincarnations  of  any  one  spirit  always  belong  to  the  one 
moiety  of  the  tribe.  If  we  start  with  a  Kirarawa  man,  then  his 
children  are  Matthurie ;  he  is  reincarnated  as  a  Matthurie  woman 
and  her  children  are  Matthurie ;  after  death  she  is  reincarnated  in 
the  form  of  a  Kirarawa  man  and  his  children  are  Matthurie,  and 
so  on  without  ceasing. 

In  a  closely  allied  tribe,  called  Wonkgongaru  ^  by  the  Urabunna, 
inhabiting  country  away  out  to  the  north-west  of  Lake  Eyre,  and 
having  the  same  two  moieties,  Kiraru  and  Matthurie,^  the  beliefs 
are  identical  with  those  of  the  Urabunna.  In  this  tribe,  but  not  in 
the  Urabunna,  there  is  a  belief  in  the  former  existence'  of  imper- 
fectly formed  human  beings  similar  to  the  inapertwa  or  incomplete 
men  of  the  Arunta  tribe. 

Just  as  in  the  Arunta  and  southern  tribes  so  in  the  Urabunna,  the 
members  of  the  totem  groups  are  supposed  to  be  responsible  for 
the  production  of  the  animal  or  plant  after  w^hich  the  group  is 

^  Premature  births  or  accidents  during  child-birth  are  always  attrib- 
uted to  the  fact  that  the  spirit  has  entered  the  body  of  the  wrong  woman. 

2  The  Urabunna  calls  this  gnuru  ularaka,  the  exact  equivalent  of  mira 
nlcheringa,  or  Alcheringa  camp,  of  the  Arunta. 

'  The  real  name  of  this  tribe  is  Gongaru.  The  prefix  Wonk  means 
speech.  The  Dieri  call  the  Urabunna  Wonkurabunna  and  vice  versa 
the  Urabunna  calls  the  Dieri  Wonkadieri,  but  they  call  themselves 
Urabunna. 

*  In  some  parts  of  the  Urabunna  the  names  are  Kirarawa  and  Matthurie, 
in  others  Kiraru  and  Matteri. 


Chap.  VII,  §  4.]  THE   URABUNNA  TRIBE  223 

named,  and  to  this  end  they  perform  Intichiuma  ceremonies. 
No  member  of  any  totemic  group  eats  the  totem  animal  or  plant, 
but  there  is  no  objection  to  his  killing  it  and  handing  it  over  to  be 
eaten  by  men  who  do  not  belong  to  the  totemic  group. 

4.  SACRED  CEREMONIES  CONNECTED  WITH  THE  TOTEMS 

The  various  ceremonies  performed  by  Australian  aborigines 
may  be  divided  into  two  groups,  which  are  sharply  marked  off 
from  one  another.  The  one  series  comprises  those  which  may  be 
witnessed,  and  perhaps  taken  part  in  by  women  or  even  children, 
the  other  includes  those  which  only  initiated  men  may  see  and  take 
part  in. 

The  great  majority  of  the  latter  are  connected  with  the  totems, 
and  refer  to  episodes  in  the  lives  of  totemic  ancestors.  Ceremonies 
such  as  these  are  met  with  in  all  of  the  tribes  studied  by  us. 

It  is  astonishing  how  large  a  part  of  a  native's  life  is  occupied 
with  the  performance  of  these  ceremonies,  the  enacting  of  which 
extends  sometimes  over  the  whole  of  two  or  three  months,  during 
which  time  one  or  more  will  be  performed  daily.  They  are  often, 
though  by  no  means  always,  associated  with  the  performance  of 
the  ceremonies  attendant  upon  initiation  of  young  men,  or  are 
connected  with  Intichiuma,  and,  so  far  as  general  features  are  con- 
cerned, there  is  a  wonderful  agreement  amongst  them  in  all  of  the 
central  and  northern  tribes. 

In  the  Arunta  tribe,  when  a  boy  is  circumcised  or  subincised, 
he  is  always  shown  a  few  of  these  ceremonies,  which  he  then  sees 
and  learns  the  meaning  of  for  the  first  time.  At  a  later  period  he 
passes  through  the  Engwura,  when  a  considerable  number  of 
natives  from  different  localities  are  gathered  together  and  a  very 
large  number  of  ceremonies  are  performed.  The  Engwura  which 
we  witnessed,  and  have  elsewhere  described,^  began  in  the  middle  of 
September  and  continued  until  the  middle  of  the  succeeding  Janu- 
ary. During  the  months  of  October,  November,  and  nearly  the 
whole  of  December  there  was  a  constant  succession  of  ceremonies, 
not  a  day  passing  without  one,  and  occasionally  there  were  as 
many  as  five  or  six  performed  within  the  twenty-four  hours.  In 
the  Arunta  very  favorite  times  for  the  performance  of  these  cere- 
monies are  just  at  sunrise  and  sunset. 

As  a  general  rule  the  number  of  performers  is  very  small  —  very 
rarely  exceeding  two  or  three,  —  and  in  the  northern  part  of  the 

1  "Native  Tribes  of  Central  Australia,"  p.  271. 


224  RETARDED   PEOPLES  [Part  II, 

tribe  there  is  frequently  a  sacred  pole  or  nurtunja  ^  used,  and  in 
the  southern  part  a  waninga.^  These  sacred  objects  usually  repre- 
sent the  totemic  animal  or  plant,  and  to  the  first  named  a  number 
of  Churinga  are  very  often  attached  which  belong  to  individual 
members  of  the  totem.  In  the  Arunta  tribe  Churinga  are  very 
largely  used  in  connection  with  sacred  ceremonies.  When  a  series 
of  these  is  going  to  be  performed,  the  first  thing  that  is  done  is  for 
one  or  two  of  the  old  men  to  go  to  the  sacred  storehouse  and  bring 
thence  a  large  number  of  Churinga.  They  place  these  on  a  special 
platform  built  on  the  ceremonial  ground,  the  spot  being  regarded 
as  sacred  so  long  as  the  Churinga  remain  there. 

Sometimes  also  other  objects,  such  as  a  shield,  or  pitchi,  will  be 
used  in  connection  with  the  ceremonies.  A  most  characteristic 
feature  of  the  latter  is  that  the  bodies  of  the  performers,  as  well 
as  any  object  used  during  the  ceremony,  are  always  decorated  with 
designs  done  in  bird's  down,  which  is  called  undattha  —  the  cere- 
monies themselves  being  spoken  of  as  quahara  undattha}  There 
is  not,  in  the  Arunta  tribe,  any  definite  order  in  which  the  cere- 
monies are  performed,  their  nature  and  the  time  and  order  of  their 
performance  being  settled  by  a  few  of  the  leading  old  men  who  are 
present.  Men  who  have  had  much  experience  and  are  looked  upon 
as  authorities  in  these  matters  are  called  oknirabata,  or  great 
teachers. 

5.  INTICHIUMA  CEREMONIES 

The  name  Intichiuma  is  applied  by  the  Arunta  tribe  to  certain 
ceremonies  intimately  associated  with  the  totems,  the  object  of  all 
of  them  being  that  of  increasing  the  supply  of  the  material  object 
from  which  the  totemic  group  takes  its  name.  For  the  sake  of 
simplicity  we  use  the  same  name  in  reference  to  equivalent  cere- 
monies in  other  tribes,  though  it  must  of  course  be  remembered 
that  the  actual  term  applied  to  them  varies  from  tribe  to  tribe. 

Up  to  the  present  time,  apart  from  "rain-making,"  Intichiuma 
ceremonies  have  been  known  to  exist  only  in  the  Central  Australian 
tribes  amongst  whom  descent  is  counted  in  the  male  line.  It  is 
therefore  of  some  interest  and  importance  to  find  that  they  exist 
well  developed  in  the  case  of  tribes  which  count  descent  in  the 
female  line,  and  in  which  also  there  are  no  true  class-names,  but 
only  names  for  the  moieties.     In  fact  a  closer  study  of  one  of  these 

1  "Native  Tribes  of  Central  Australia,"  p.  253.  ^  /^^^^^^  p.  307. 

3  Similar  ceremonies  are  enacted  by  the  Urabunna  tribe,  who  call  them 
wadni  wandattha,  the  ordinary  dancing  corrobboree  being  called  warundi. 


Chap.  VII,  §  5.]  THE   URABUNNA  TRIBE  225 

maternal  descent  tribes,  such  as  the  Urabunna,  which,  it  may  be 
remarked,  is  very  closely  allied  to  the  Dieri,  reveals  the  striking 
fact  that  in  its  beliefs  and  customs  it  is  fundamentally  in  agree- 
ment with  such  a  tribe  as  the  Arunta.  At  the  same  time  the  differ- 
ences between  the  two  are  such  as  quite  to  preclude  the  possibility 
of  one  having  simply  borrowed  ideas  from  the  other. 

In  the  Urabunna  tribe  Intichiuma  ceremonies  are  called  pitjinta, 
and  the  special  name  of  pani-inta  is  applied  to  the  decorations 
drawn  on  the  bodies  of  the  performers.  At  a  water-hole  called 
Tjantjiwanperta,  close  to  a  hill  now  known  as  Mount  Kingston, 
there  is  a  local  centre  of  the  rain  totem,  and  here  ceremonies  are 
performed  for  the  making  of  rain.  In  the  Alcheringa  an  old 
Kirarawa.  man  of  the  rain  totem  named  Mutapatta,  arose  here  and' 
also  a  little  boy  who  was  his  grandson.  The  old  man  had  plenty 
of  gypsum.  Taking  some  of  this  he  ground  it  up  finely  and  threw 
it  about  in  all  directions  so  as  to  make  clouds.  After  a  time  these 
came  down  to  earth  in  the  form  of  rain  black-fellows.  Later  on 
they  went  up  into  the  sky  again  in  the  form  of  clouds,  and  then  rain 
fell,  filling  all  the  clay  pans.  Again  they  came  down  to  earth  as 
men,  and  then  travelled  away  for  a  long  distance.  Every  now  and 
then  they  went  up  into  the  sky,  forming  a  long  low  bank  of  clouds. 
Meanwhile  an  old  rain  man  came  down  from  the  north,  from  the 
country  of  the  Arunta.  The  Urabunna  man  sat  down  at  Tjantji- 
wanperta, and  the  Arunta  man  at  a  hill  close  to  Mount  Kingston. 
The  Arunta  said,  "I  saw  your  lightning."  The  Urabunna  re- 
plied, "What  do  you  want  to  come  and  look  at  my  Churinga 
place  for?"  1  The  Urabunna  man  had  five  stripes  of  down  which 
he  wore  across  his  stomach  when  he  made  rain,  and  the  Arunta 
man  stole  four  of  them,  so  that  at  the  present  day  the  Urabunna 
man,  when  performing,  can  only  wear  one.  After  this  the  Arunta 
man  returned  to  his  own  country.  The  cloud  men  came  back  again 
to  Tjantjiwanperta,  Mount  Kingston  arising  to  mark  their  tracks.^ 
Then  the  old  Urabunna  man  took  them  all  on  his  back,  the  grand- 
son climbing  on  to  the  very  top,  and  a  cluster  of  boulders  at 
Tjantjiwanperta  now  marks  the  spot  where  this  took  place.  Every 
now  and  again,  as  they  travelled  along,  they  went  up  into  the  sky 
in  cloud  form  and  made  rain. 

A  long  way  off  there  was  another  Urabunna  rain  man,  named 

^  This  is  the  same  as  the  Nanja  in  the  Arunta  —  that  is,  the  rock  or 
tree  or  other  object  inhabited  by  the  ancestor  in  spirit  form.  The  Ura- 
bunna call  it  Watthilli. 

2  The  native  name  for  Mount  Kingston  is  Korara  merkunda,  which 
means  ** clouds  arising." 


226  RETARDED   PEOPLES  [Part  II. 

Mintali,  who  was  a  Matthurie.  He  saw  the  clouds  appearing  and 
then  disappearing  in  the  distance.  He  also  had  made  a  number  of 
rain  men  who  went  up  into  the  sky  in  the  form  of  clouds.  The 
two  clouds  met  and  mixed  together,  and  finally  all  of  the  men  went 
on  into  the  country  of  the  Wonkgongaru  tribe,  where  they  went 
into  the  earth,  leaving  large  numbers  of  mai-aurli  or  spirit  children 
behind  them. 

At  the  present  day  the  headman  in  charge  of  Tjantjiwanperta 
makes  rain.  When  performing  he  wore  a  head-dress  of  hair-string 
completely  covered  over  with  white  down  which  extended  over  his 
shoulders  and  chest.  A  single  bar  of  down  passed  across  the 
stomach  and  two  down  each  side  of  the  spine.  A  tuft  of  cockatoo 
feather  formed  a  tip  to  the  head-dress,  and  bunches  of  eagle-hawk 
feathers  hung  down  all  round  from  his  waist-girdle.  He  held  a 
spear-thrower  in  his  hands.  First  of  all  he  squatted  on  the  ground 
in  front  of  the  few  men  who  formed  the  audience,  one  man  sitting 
down  on  each  side  striking  the  earth  with  a  stone  while  singing  the 
following  refrain  — 

At  nau  walta  walta 
Mantja  lintjurla  an  ni 
Tjalpara  nantja 
Mantja  an  ni  tjalpinna. 

The  performer  rose  from  the  ground  to  a  stooping  position,  striking 
out  and  moving  the  thrower  backwards  and  forwards,  quivering 
his  body  and  turning  his  head  from  side  to  side.  At  intervals  he 
lifted  his  body  up  as  if  attempting  to  rise  from  the  ground,  while 
he  gazed  into  the  sky  in  imitation  of  the  cloud  men  who,  in  the 
Alcheringa,  used  to  go  into  the  sky,  forming  clouds  from  which  the 
rain  came  down.  Finally  he  sat  down  abruptly  and  the  ceremony 
was  at  an  end. 

The  general  term  for  Intichiuma  in  the  Urabunna  tribe  is 
pitjinta,  but  in  addition  each  totem  group  has  a  separate  name  for 
its  own  ceremony.  In  the  case  of  the  rain  group  this  name  is 
wadni. 

In  the  Intichiuma  ceremony  of  a  snake  group  called  wadnun- 
gadni  the  old  headman  of  the  group  performed.  His  body  was 
decorated  with  lines  of  red  and  yellow  ochre,  and  on  his  head  he 
wore  a  sacred  ceremonial  object  called  pariltja.  It  was  made  of 
two  sticks  each  about  two  feet  in  length,  fastened  together  at  right 
angles.  Strands  of  furstring  stretched  across  from  stick  to  stick, 
so  as  to  form  a  kind  of  banner.  Each  of  the  four  ends  was  orna- 
mented with  a  tuft  of  cockatoo  feather,  and  it  was  worn  lying  flat 


Chap.  VII,  §  6.]  THE   URABUNNA  TRIBE  227 

on  the  top  of  the  head.  Kneeling  on  the  ground  he  extended  his 
arms  at  full  length,  holding  in  each  hand  a  sharpened  bone  about 
six  inches  in  length.  A  man  on  his  right  took  the  bone  out  of  that 
hand  and  pinched  up  the  skin  of  the  arm,  while  the  performer  with 
his  left  hand  thrust  the  bone  through  the  skin.  Then  another  man 
on  the  left  lifted  up  the  skin  of  that  arm  and  the  performer  thrust 
the  second  bone  through  it.  Then  holding  his  arms  extended,  he 
twice  sang  the  following  refrain  — 

Lirri  watthai  umpai 
Lara  nalari  tjinta. 

When  this  was  over  he  drew  the  bones  out  and  the  ceremony  was 
at  an  end.  As  usual,  in  the  case  of  sacred  ceremonies,  /the  words 
have  no  meaning  known  to  the  nativp^^  and  have  been  handed 
down  from  the  Alcheringa.  It  must  be  rather  a  painful  ordeal  to 
the  performer,  whose  arms  were  marked  with  numerous  scars.  He 
told  us  that  sometimes  he  pierces  the  skin  of  each  arm  with  three 
or  four  bones.  The  bones  are  called  paidni,  and  when  not  in  use 
are  wrapped  in  hair  cut  from  the  head  of  a  snake  man.  After  the 
ceremony,  and  when  the  snake  has  become  plentiful,  men  who  do 
not  belong  to  the  snake  group  go  out  and  bring  some  in  to  the  old 
man,  saying,  " Au  uta  nanni  omba,^^  which  means,  ''See,  here  are 
snakes."  A  younger  tribal  brother  who  does  not  belong  to  the 
totemic  group  presents  him  with  some  fat  taken  from  one  of  the 
snakes.  He  rubs  his  arms  with  this  and  then  says,  "  Unta  tani 
urquari,^^  which  means,  ''You  eat  —  all  of  you." 

The  ceremony  is  a  simple  one  as  compared  with  some  of  the  more 
elaborate  ones,  such  as  that  of  the  Udniringita  grub  group  in  the 
Arunta  tribe,  but  its  significance  is  unmistakable.  The  old  man 
told  us  that,  if  the  men  who  did  not  belong  to  the  totem  group  were 
to  eat  the  snake  without  first  bringing  it  in  to  him  and  asking  his 
permission  to  do  so,  he  would  warn  them  that  by  and  by  they  would 
see  no  more  snakes. 

6.  INITIATION  CEREMONIES 

In  every  tribe  there  are  certain  ceremonies  through  which  all  of 
the  youths  must  pass  before  they  are  admitted  to  the  ranks  of  the 
men  and  allowed  to  see  or  take  part  in  any  of  the  performances 
which  are  regarded  as  sacred.  The  more  important  of  these  cere- 
monies are  two  in  number,  and  are  fundamentally  similar  in  all 
of  the  tribes.  They  are  those  of  circumcision  and  subincision. 
In  this  respect  the  central  tribes  differ  markedly  from  those  of  the 


228  RETARDED   PEOPLES  [Part  II. 

east  and  south-eastern  coastal  districts,  amongst  whom  the  initia- 
tion ceremonies  are,  or  rather  were,  of  a  very  different  nature. 

Amongst  these  coastal  tribes  a  very  characteristic  ceremony 
consisted  in  the  knocking  out  of  one  or  more  of  the  upper  incisor 
teeth.  It  is  a  curious  fact  that  the  central  tribes  very  often  per- 
formed this  ceremony,  but  in  this  instance  it  has  nothing  whatever 
to  do  with  initiation,  and  is  not  restricted  to  the  men,  as  of  course 
it  is  amongst  the  tribes  in  which  it  is  associated  with  initiation. 
As  we  have  elsewhere  stated,^  it  appears  to  be  very  probable  that 
this  was  the  older  form  of  initiation  common  to  the  ancestors  of  the 
central,  eastern,  and  south-eastern  tribes,  and  that  in  course  of 
time  it  was,  for  some  reason  or  another,  superseded  in  the  case  of 
the  central  tribes  by  the  ceremonies  now  in  vogue.  WTien  once 
the  latter  became  established,  then  the  older  ceremony  lost  all 
sacred  significance,  and  came  to  be  practised  indiscriminately  by 
men  and  women  alike.  It  is  at  all  events  a  very  suggestive  fact 
that  whilst  amongst  the  central  tribes  we  find  traces  of  the  cus- 
toms associated  with  initiation  in  the  eastern  and  south-eastern 
coastal  tribes,  we  do  not,  on  the  other  hand,  find  amongst  the  latter 
even  the  slightest  trace  of  the  characteristic  and  important  cere- 
monies of  the  central  and  western  natives. 

In  addition  to  the  rites  of  cirgumgision  and  subincision,  there  are 
other  ceremonies  associated  with  initiation  through  which  in  some 
cases  the  youths  and  in  others  the  adult  men  must  pass.  These 
are,  however,  really  of  secondary  importance.  One  of  them  is 
associated  with  boys  at  an  early  age  and  the  other  with  men  of 
mature  age,  while  the  two  important  ones  are  always  performed 
when  the  youth  arrives  at  puberty.  We  tried  in  vain  to  find  any 
satisfactory  explanation  of  the  ceremonies  of  circumcision  and 
subincision,  but  so  far  as  we  could  discover,  the  native  has  no 
idea  whatever  of  what  these  ceremonies  mean.  One  thing  is  quite 
clear,  and  that  is,  they  have  not  the  slightest  reference  to  keeping 
down  the  numbers  of  the  tribe.^  It  must  always,  in  regard  to  this 
matter,  be  borne  in  mind  that  in  all  of  these  tribes  no  one  is  allowed 
to  have  a  wife  until  he  has  passed  through  the  rites  of  subincision 
and  circumcision,  and  that  indeed  the  women  look  with  contempt 
upon  those  who  have  not  done  so.  Further  still,  if  the  natives  do 
not  wish  a  child  to  live,  they  adopt  the  very  simple  expedient  of 
killing  it  as  soon  as  ever  it  is  born.     This  plan  is  by  no  means 

1  "Native  Tribes  of  Central  Australia,"  p.  453. 

2  This  has  been  pointed  out  previously  by  Roth,  "Ethnological  Studies 
among  the  North-west-central  Queensland  Aborigines,"  p.  179,  and  also 
by  ourselves,  "Native  Tribes  of  Central  Australia,"  p.  264. 


Chap.  VII,  §  6.]  THE   URABUNNA  TRIBE  229 

seldom  adopted,  and  with  this  easy  and  well-recognised  means  of 
keeping  down  the  population  always  to  hand,  it  is  scarcely  likely 
that  the  men  will  submit  to  what  is,  after  all,  a  very  painful  opera- 
tion for  the  purpose  of  achieving  a  result  which  not  only  can  be, 
but  normally  is,  gained  by  that  of  infanticide.  These  initiation 
ceremonies  are  of  very  ancient  date,  and  their  true  meaning  remains 
yet  to  be  discovered.  We  tried  hard  to  find  among  the  traditions 
of  the  various  tribes  anything  which  might  afford  a  clue  to  their 
meaning,  but  without  success,  and  we  know  as  little  now  as  we 
did  at  the  beginning  of  our  work.  The  natives  themselves  have 
no  idea  in  regard  to  their  significance,  and  it  is  a  rather  curious 
fact  that  they  have  not  invented  some  tradition  to  explain  their 
meaning.  All  that  they  can  tell  you  is  that,  in  the  Alcheringa, 
or  the  equivalent  of  the  same  in  the  different  tribes,  there  was  some 
ancestor  or  other  who  first  of  all  performed  one  or  both  of  the 
operations,  usually  upon  himself  first  and  later  upon  other  individ- 
uals. Since  that  time  the  natives  have  continued  to  follow  his 
example,  but  why  their  ancestor  first  of  all  performed  the  ceremony 
they  have  not  the  vaguest  idea. 

The  ceremonies  can  never  have  had  any  reference  directly  to 
procreation,  for  the  simple  reason  that  the  natives,  one  and  all 
in  these  tribes,  believe  that  the  child  is  the  direct  result  of  the 
entrance  into  the  mother  of  an  ancestral  spirit  individual.  ^ .  . 
There  are,  for  example,  in  the  Arunta  country  certain  stones  which 
are  supposed  to  be  charged  with  spirit  children  who  can,  by  magic, 
be  made  to  enter  the  bodies  of  the  women,  or  will  do  so  of  their  own 
accord.  Again,  in  the  Warramunga  tribe,  the  women  are  very 
careful  not  to  strike  the  trunks  of  certain  trees  with  an  axe,  be- 
cause the  blow  might  cause  spirit  children  to  emanate  from  them 
and  enter  their  bodies.  They  imagine  that  the  spirit  is  very 
minute  —  about  the  size  of  a  small  grain  of  sand,  —  and  that  it 
enters  the  woman  through  the  navel  and  grows  within  her  into  the 
child.  It  will  thus  be  seen  that,  unless  the  natives  have  once 
possessed,  but  have  since  lost,  all  idea  of  the  association  between 
procreation  and  the  intercourse  of  the  sexes,  which  is  extremely 
improbable,  the  elaborate  and  painful  ceremonies  of  initiation  can- 
not in  their  origin  have  had  any  direct  relation  to  procreation. 

There  is  one  curious  fact  in  regard  to  the  distribution  of  the 
initiation  ceremonies  amongst  the  tribes  in  the  northern  part  of 
the  continent.  Occupying  the  country  in  the  Port  Darwin  dis- 
trict is  a  tribe  called  the  Larakia,  which  apparently  differs  from  all 
others  in  this  part  of  the  continent  in  regard  to  initiation.     In 


230  RETARDED   PEOPLES  [Part  II. 

connection  with  the  latter  this  tribe  practises  neither  the  rite  of 
knocking  out  of  teeth  nor  that  of  circumcision  and  subincision. 
Unfortunately  we  could  not  work  amongst  them,  and  were  only 
able  to  gather  a  little  information  from  a  member  of  the  tribe  —  an 
elderly  man  —  w^ho  happened  to  come  down  to  the  Macarthur 
River  when  we  were  there.  The  tribe  has  for  long  been  under  the 
influence  of  the  white  man,  but  the  absence  of  ceremonies,  so 
characteristic  of  the  surrounding  tribes,  has  nothing  to  do  with  this 
fact.  The  initiation  of  the  Larakia  youths  takes  the  form  of  a 
series  of  more  or  less  disagreeable  tests,  which  are  evidently  de- 
signed to  try  the  strength  and  endurance  of  those  passing  through 
them.  A  number  of  youths  who  have  arrived  at  the  age  of  puberty 
are  taken  to  a  retired  spot  under  charge  of  certain  old  men,  whose 
orders  they  have  to  obey  implicitly.  Here,  as  our  informant  told 
us,  the  old  men  do  not  give  them  too  much  to  eat.  A  younger 
brother  is  provided  by  an  elder  brother  with  such  food  as  he  is 
allowed  to  have.  Every  now  and  again  an  old  man,  without  any 
warning  or  reason,  will  bestow  a  hard  blow  or  a  kick  upon  one  of 
the  youths.  The  latter  must  neither  resent  it  nor  show  any  sign 
of  being  hurt,  which  would  only  result  in  his  receiving  worse 
treatment.  The  old  men  also  make  the  youths  undergo  severe 
manual  labour,  such  as  that  of  cutting  down  and  rolling  over  heavy 
logs,  and  a  favourite  test  is  to  order  a  few  of  them  to  go  into  the 
water  and  bring  a  crocodile  to  land.  Finally,  when  the  old  men  are 
satisfied  with  the  conduct  of  the  youths,  they  show  them  the  sacred 
bull-roarer,  which  is  called  Biddi-biduba,  telling  them  on  no  account 
to  allow  their  younger  brothers  or  any  women  to  see  it.  The 
youths  are  each  provided  with  one  of  these  which  they  take  out 
into  the  bush  and  secrete  in  a  safe  place.  Unlike  what  happens 
in  most  other  tribes,  the  sacred  stick  is  not  kept,  but  at  the  end  of 
two  or  three  weeks  it  is  broken  and  buried  in  the  ground.  The 
women  call  the  stick,  or  rather  the  noise  associated  with  it,  Eruba, 
and  believe  that  this  is  the  voice  of  a  spirit  who  has  come  down 
from  the  sky  and  is  carrying  the  youths  away  into  the  bush  from 
which  they  will  return  initiated  men.  With  the  exception  of  this 
tribe,  all  of  those  occupying  the  central  and  northern  central  area 
of  the  continent  practise  the  two  important  rites  of  circumcision 
and  subincision.^ 

^  Curiously  the  Arunta  tribe  has  a  tradition  relating  to  a  number  of 
individuals  who  were  taken  away  to  the  north  under  the  leadership  of 
an  Aleheringa  ancestor  named  Kukaitcha.  They  travelled  on  until  they 
came  into  the  country  of  the  salt  water,  and  there  they  stayed  and  re- 
mained always  uncircumcised. 


Chap.  VII,  §  6.]  THE  URABUNNA  TRIBE  231 

In  the  Urabunna  tribe  a  man  who  stands  in  the  relationship 
of  kadnini  (paternal  grandfather)  to  the  boy  seizes  hold  of  him  and 
puts  his  hand  over  the  boy's  mouth,  telling  him  to  remain  silent. 
Placing  string  round  the  boy's  neck,  the  old  man  takes  him  away 
to  the  camp.  Here  he  is  made  to  lie  down  and  is  covered  up  while 
the  lubras  dance  in  front  of  the  men.  All  night  long  the  old  man 
keeps  watch  over  the  boy,  and  at  daylight,  after  the  women  have 
once  more  danced,  he  ties  the  boy's  hair  up  with  string  which  has 
been  provided  for  the  purpose  by  the  father.  Then  the  boy  is 
formally  shown  to  the  lubras,  the  old  man  with  the  boy  running 
round  and  round  them  shouting  ^'Wo!  Wof'  Suddenly  they 
dart  off  into  the  scrub.  That  day  the  two  start  away  to  visit 
distant  groups  and  invite  them  to  come  in  to  the  ceremony.  Each 
time  they  approach  a  camp  ^  the  old  man  takes  the  boy  by  the  arm 
and  leads  him  up,  while  the  strangers,  understanding  exactly 
what  is  taking  place,  shout  out,  "  Pau!     Pau!" 

On  the  way  back  they  gather  together  the  various  groups,  and 
for  a  time  the  lubras  accompany  them,  but  are  left  behind  at  a 
place  some  distance  from  the  main  camp.  On  the  way  back  the 
men,  after  the  women  have  been  left  behind,  perform  a  few  sacred 
ceremonies  in  the  camp  at  night-time.  For  the  first  time  the  boy 
sees  one  of  these  and  learns  anything  about  the  secret  matters  of 
the  tribe  concerned  with  the  totemic  ancestors.  Some  miles 
away  from  the  home  camp  the  old  man  tells  the  boy  to  make  a 
big  smoke  so  as  to  let  his  father  and  the  other  men  know  that  he  is 
returning.  At  the  camp  the  women  sit  a  little  distance  behind  the 
men,  and  the  boy,  approaching,  walks  past  the  men  and  sits  down 
close  to  the  women.  Then  two  old  men  who  are  kadnini  (grand- 
father) to  the  boy  come  up,  take  the  string  from  his  head,  and  lead 
him  off  by  a  roundabout  way  to  the  men's  camp.  That  night  and 
the  succeeding  one  singing  goes  on  without  ceasing,  and  totemic 
ceremonies  are  performed,  some  associated  with  local  groups  and 
others  with  those  to  which  some  of  the  strangers  belong.  Then 
the  boy  is  taken  a  little  distance  away  while  the  stone  knife  ^  is 

^  Travelling  on  an  errand  such  as  this  the  man  and  boy  are  perfectly 
safe.  In  regard  to  this  immunity  from  attack,  even  in  a  strange  country, 
there  are  certain  fixed  rules  amongst  the  natives.  Any  one  carrying  a 
sacred  stick  or  Churinga  is  for  the  time  being  sacred  and  must  on  no  pre- 
tence be  injured.  When  an  old  man  is  seen  with  a  youth  travelling  from 
place  to  place,  the  natives  at  once  understand  what  is  happening,  and  would 
not  think  of  molesting  them.  Since  the  advent  of  the  white  man  a  letter, 
or,  as  the  natives  call  it,  a  "paper  yabber,"  carried  in  a  forked  stick  is 
as  safe  a  passport  as  a  Churinga. 

2  This  is  often  only  a  sharp  chip  of  quartzite,  or,  when  procurable,  the 
natives  prefer  a  splinter  of  glass. 


232  RETARDED   PEOPLES  [Part  II. 

made  ready  by  the  kawkuka  (mother's  brother)  and  nuthi  (elder 
brother).  After  this  the  boy  is  brought  back,  the  singing  is  con- 
tinued, and  he  is  given  a  Httle  food  to  eat. 

After  sunset  three  men,  who  stand  in  the  relationship  of  oknia 
(father)  to  the  boy,  crouch  down  so  as  to  form  a  kind  of  table  on 
to  which  the  boy  is  lifted  by  his  kawkuka  (mother's  brother)  and 
kadnini  (grandfather).  Fur-string  is  put  into  his  mouth,  and  a 
witiwa  (wife's  brother)  sits  astride  of  his  stomach.  .  .  . 

An  elder  brother  now^  takes  the  initiated  youth  away  into  the 
bush  and  makes  a  small,  plain  w^ooden  Churinga,  which  he  gives 
the  boy  to  carry  about,  telling  him  that  it  belonged  to  the 
Umbumbbuninia  (the  equivalent  of  the  Alcheringa),  and  that  he 
must  keep  swinging  it.  On  no  account  is  he  to  allow  any  lubra 
or  child  to  see  it.  At  times  the  elder  brother  watches  over  him  and 
at  others  the  witiwa  (wife's  brother).  He  is  not  allowed  to  eat 
kadni,  the  jew  lizard  (a  favourite  and  fairly  abundant  food  of  the 
natives),  or  else  it  would  make  him  sore  and  prevent  his  wound 
from  healing.  On  the  other  hand  he  is  supposed  to  make  presents 
of  it  to  the  old  men. 

When  he  has  recovered  from  the  operation  of  circumcision  he  is 
brought  into  the  men's  camp,  no  women  being  allowed  to  see  him. 
Early  in  the  morning  he  is  painted  with  red  ochre,  and  later  on  a 
kawkuka  (mother's  brother)  takes  the  string  off  his  head.  Then 
three  men  who  stand  to  him  in  the  relationship  of  oknia  (father) 
crouch  down  so  as  to  form  a  kind  of  table  on  which  he  is  at  once 
placed,  another  oknia  performing  the  operation  of  subincision.  A 
small  piece  of  bark  is  inserted  so  as  to  keep  the  wound  open,  but 
is  removed  after  a  few  hours,  the  blood  being  allowed  to  trickle 
down  into  a  hole  in  the  ground  which  is  afterwards  filled  with  earth. 
That  night  he  is  shown  more  sacred  totemic  ceremonies,  and  men 
who  are  witiwa  (wife's  brother)  and  kadnini  (grandfather)  to  him 
come  up  and  tell  him  that  he  is  now  a  man  and  not  a  boy.  He  must 
not  attempt  to  have  intercourse  with  lubras  other  than  his  nupa 
and  piraungaru  women  (lawful  wives).  If  he  does  so  then  he  will 
fall  down  dead  like  the  stones.  He  is  not  on  any  account  to  inter- 
fere with  other  men's  lubras. 

In  the  morning  the  lubras  light  a  fire  and  place  green  boughs 
upon  it  so  as  to  make  a  smoke,  in  the  midst  of  which  the  youth 
kneels  down  while  his  kupuka  and  kakua  (younger  and  elder  sisters) 
hit  him  on  the  back,  the  women  who  stand  to  him  in  the  relation- 
ship of  mother  being  close  at  hand  to  prevent,  so  they  say,  the 
sisters  from  hitting  him  too  hard.     After  this  he  may  have  a  wife 


Chap.  VII,  §  6.]  THE   URABUNNA  TRIBE  233 

and  takes  his  place  amongst  the  initiated  men  at  the  urathilpi  or 
men's  camp.  After  a  short  time  he  must  give  a  present  of  food, 
which  is  called  by  the  special  name  of  katu,  to  the  men  who  assisted 
in  the  operation.  These  men  put  a  little  bit  of  meat  up  to  his 
mouth,  and  in  that  way  release  him  from  the  ban  of  silence. 
******* 

So  far  as  the  inculcation  of  anything  like  moral  ideas  is  concerned, 
this,  such  as  it  is,  may  be  said  to  take  place  always  in  connection 
with  initiation,  but  it  is  never  associated  with  the  mention  of  the 
name  of  any  individual  who  is  supposed  in  any  way  whatever  to 
sanction  such  moral  precepts.  Twanyirika  of  the  Arunta  and 
Unmatjera,  and  Katajalina  of  the  Binbinga  are  merely  bogeys  to 
frighten  the  women  and  children  and  keep  them  in  a  proper  state  of 
subjection  nor  does  there  appear  to  be  any  evidence  which  would 
justify  the  hypothesis  that  the  present  ideas  with  regard  to  them 
are  the  result  of  degradation.  Tumana  of  the  Kaitish  and  Murtu- 
murtu  of  the  Warramunga  are  merely  Alcheringa  ancestors  who 
invented  the  Churinga,  but  are  regarded  as  in  no  way  different 
from,  or  more  powerful  than,  scores  of  other  such  ancestors. 
Atnatu  of  the  Kaitish  stands  by  himself ;  before  the-  Alcheringa 
was  he  was  —  in  fact  he  made  the  Alcheringa ;  but  he  is,  at  all 
events  according  to  the  present  ideas  of  the  natives,  in  no  way  to  be 
regarded  as  a  great  moral  preceptor,  and  it  may  safely  be  said  that, 
amongst  the  tribes  inhabiting  the  whole  of  the  central  and  northern 
central  area  of  the  continent,  the  natives  have  not  the  faintest 
idea  of  any  such  being.  We  searched  carefully  in  the  hope  of 
finding  traces  of  a  belief  in  such  a  being,  but  the  more  we  got  to 
know  of  the  details  of  the  native  beliefs,  the  more  evident  it  became 
that  they  had  not  the  faintest  conception  of  any  individual  who 
might  in  any  way  be  described  as. a  "High  God  of  the  Mysteries." 

Amongst  these  tribes  the  injunctions  which  are  laid  upon  the 
novice  at  the  time  of  his  initiation  are,  speaking  generally,  the 
following :  — 

(1)  That  he  must  obey  his  elders  and  not  quarrel  with  them.) 

(2)  That  he  must  not  eat  certain  foods,  but  must  provide  food^ 
for  individuals  who  stand  in  a  certain  relationship  to  him.  i 

(3)  That  he  must  not  attempt  to  interfere  with  women  who  have  1 
been  allotted  to  other  men,  or  belong  to  groups  with  the  individuals  J 
of  which  it  is  not  lawful  for  him  to  have  marital  relations. 

(4)  That  he  must  on  no  account  reveal  any  of  the  secret  matters 
connected  with  the  totems  to  the  women  and  children.  It  will  be 
seen  that  in  each  instance  (except  to  a  certain  extent,  the  third  one) 


234  RETARDED   PEOPLES  [Part IL 

insistence  upon  the  carrying  out  of  these  precepts  is  clearly  a  mat- 
ter of  interest  to  the  older  men.  In  regard  to  the  third,  whilst 
the  carrying  out  of  this  is  of  mutual  advantage,  yet  at  the  same 
time  it  is  of  special  advantage  to  the  older  men  because,  owing  to 
the  curious  system  of  betrothal  in  vogue  amongst  these  tribes,  the 
younger  women  pass  into  their  possession,  and  the  only  lubra  that 
a  young  man  can  probably  obtain  will  be  the  widow  of  a  dead  elder 
brother. 

So  far  as  anything  like  moral  precepts  are  concerned  in  these 
tribes  —  to  which  of  course  our  remarks  alone  have  reference  —  it 
appears  to  us  to  be  most  probable  that  they  have  originated  in  the 
first  instance  in  association  with  the  purely  selfish  idea  of  the  older 
men  to  keep  all  the  best  things  for  themselves,  and  in  no  case 
whatever  are  they  supposed  to  have  the  sanction  of  a  superior 
being. 

7.   INHERITANCE 

In  the  Arunta  nation  every  individual  has  not  only  his  own 
personal  chattels,  weapons,  and  implements  of  various  kinds,  but 
he  also  has  sacred  objects  such  as  Churinga,  which,  to  a  certain 
extent,  are  regarded  as  his  property,  though  they  are  kept  in  the 
sacred  storehouse  of  the  local  group  of  which  he  is  a  member. 
They  are  under  the  charge  of  the  headman,  and  he  does  not  touch 
them  without  the  consent  of  the  latter.  These  Churinga  belonged 
to  ancestors,  and  with  some  of  them  sacred  ceremonies  are  asso- 
ciated. NHis  own  chattels  he  may,  if  he  feel  so  disposed,  give  away 
during  his  lifetime,  though  after  his  death  there  are  only  certain 
special  individuals  who  may  inherit  them^  On  the  other  hand  it  is 
quite  otherwise  with  the  Churinga  and  the  ceremonies  associated 
with  them;  they  are  very  much  like  the  beginnings  of  entailed 
property  and  must  descend  along  a  certain  line,  and  at  no  time  has 
their  owner  the  right  to  part  with  them  save  along  this  line.  If  the 
man  has  a  son  of  mature  age,  then  on  the  death  of  the  parent  the 
son  will  take  charge  of  them  —  the  eldest  son  if  there  be  more  than 
one.  If,  however,  the  son  be  a  mere  boy,  they  are  taken  over  by  a 
younger  brother  (blood  or  tribal)  of  the  dead, man  until  such  time 
as  the  son  is  mature.  If  there  be  no  son  at  all  then  they  pass 
permanently  into  the  brother's  possession,  and  will  in  due  time 
descend  to  his  son.  In  the  case  of  a  woman,  though  she  has  a 
Churinga  nanja,  she  never  sees  it,  and  on  her  death  it  is  handed  over 
to  a  younger  brother.  If  she  has  no  brother-in-blood,  the  old  men 
who  stand  to  her  in  the  relationship  of  okina  (father)  and  aninga 


Chap.  VII,  §  7.]  THE   URABUNNA  TRIBE  235 

(grandfather)  decide  upon  some  tribal  brother,  younger  than 
herself,  to  whom  it  is  given.  The  woman  may,  of  course,  be  the 
reincarnation  of  a  celebrated  Alcheringa  ancestor,  in  which  case 
there  will  be  some  special  ceremony  associated  with  the  Churinga, 
the  right  to  perform  which,  as  in  all  such  cases,  will  go  with  the 
Churinga.^  Not  only  is  there  a  considerable  amount  of  repute 
associated  with  the  possession  of  a  large  number  of  Churinga  and 
ceremonies,  but  there  is  also  the  material  advantage  that  young 
men  who  are  shown  such  ceremonies  for  the  first  time  have  to 
present  the  owner  of  them  with  an  offering  of  food. 

In  all  cases  it  will  be  seen  that  the  Churinga  always  remain  in 
the  possesssion  of  individuals  belonging  to  the  one  moiety  of  the 
tribe ;  hence  the  fact  that  the  woman's  Churinga  does  not  descend 
to  her  son,  but  to  a  brother.  If  it  descended  to  her  son,  then,  as 
descent  is  counted  in  the  paternal  line,  the  Churinga  would  pass 
into  the  possession  of  a  man  of  the  moiety  to  which  she  does  not 
belong. 

The  same  conditions  apply  in  the  case  of  the  Kaitish  and  Un- 
matjera  tribes,  but  when  we  pass  north  from  these  into  the  Warra- 
munga  there  is  no  such  number  of  Churinga,  nor  does  the  individual 
have  a  proprietary  right  in  certain  sacred  ceremonies.  These 
belong  to  the  group  as  a  whole,  and  this  again  is  to  be  associated 
with  the  fact  that  each  totemic  group  has  one  great  ancestor  who 
performed  the  ceremonies  connected  with  the  group.  He  also  left 
behind  him  the  spirit  individuals  who  are  now  reincarnated,  but 
who,  unlike  the  ancestors  of  the  Arunta  tribe,  did  not  themselves 
perform  ceremonies,  and  hence  their  living  representatives  have  no 
individual  association  with  or  proprietary  rights  in  them.  A  man 
may  possess  one  or  two  Churinga,  but  these  will  descend  in  the 
usual  way  along  with  his  chattels. 

In  the  Warramunga,  Walpari,  Wulmala,  Tjingilli,  Umbaia,  and 
Binbinga  tribes,  after  a  man's  death  his  chattels  pass  into  the 
possession  of  men  who  are  his  mothers'  brothers  or  his  daughters' 
husbands  —  that  is  everything  goes  to  men  of  the  moiety  of  the 
tribe  to  which  the  dead  man's  mother  belonged.  With  the  solitary 
exception  of  their  yam,  or  digging-sticks,  the  women  are  not 
allowed  to  take  anything  away  at  all. 

What  happened  in  the  case  of  a  Warramunga  man  who  died 

during  the  time  of  our  visit  will  serve  to  illustrate  the  matter.     As 

soon  as  ever  the  death  occurred  the  man's  mia-mia,  or  shelter  of 

boughs  was  torn  down  and  destroyed.     His  few  chattels  were 

1  For  further  details,  see  "Native  Tribes  of  Central  Australia,"  p.  154. 


236  RETARDED   PEOPLES  [Part  II. 

gathered  together  and  taken  charge  of  by  a  Thakomara  woman, 
his  mother,  or,  in  this  instance,  mother's  sister.  The  next  morning, 
while  the  mourning  ceremonies  were  being  carried  on,  the  dead 
man's  chattels  were  brought  by  the  Thakomara  woman  to  a  group 
of  men  composed  of  two  Tjapeltjeris,  one  Tjupila,  one  Thapanunga, 
and  an  elder  and  younger  Thakomara.  The  women  placed  them 
on  the  knees  of  the  elder  Thakomara  and  then  retired. 

The  old  man  opened  up  the  bundle,  which  contained  all  the 
worldly  possessions  of  the  dead  man.  The  complete  list  of  these 
was  as  follows  :  —  Three  boomerangs,  two  clubs,  three  pitchis,  one 
tomahawk,  one  hair-girdle,  one  vegetable-fibre  girdle,  one  knife, 
and  a  common-looking  piece  of  stone  wrapped  up  in  bark.  The 
old  man  examined  this  last  carefully  but  could  evidently  make 
nothing  of  it,  and  it  was  simply  left  on  the  ground  when  they  went 
away  as  of  no  importance.  They  did  not  appear  to  be  afraid  lest 
it  should  possess  or  be  able  to  work  evil  magic  of  some  kind  in 
consequence  of  its  having  been  carried  about  by  the  dead  man. 
There  were  no  Churinga,  nor  indeed  anything  of  a  sacred  nature. 
The  old  Thakomara  asked  the  younger  one  what  things  he  would 
take,  urging  him  to  take  the  whole  lot,  in  the  usual  polite  way  of  the 
natives,  being  of  course  fully  aware  that  he  would  do  no  such  thing. 
It  ended  in  the  younger  man  taking  as  his  share  the  clubs  and 
boomerangs,  and  the  elder  man  everything  else,  including  the  most 
valuable  thing,  the  tomahawk,  an  iron  one  which  we  had  lately 
presented  to  the  dead  man.  The  younger  Thakomara  man  told 
us  that,  according  to  custom,  he  would  present  the  weapons  which 
fell  to  his  share  to  other  Thakomara  men  younger  than  himself. 
The  old  Thakomara  took  his  share  to  his  mia-mia  and  retained 
them  there ;  being  a  very  old  man  he  was  not  supposed  to  distrib- 
ute  them.  In  this  way  it  will  be  seen  that  there  is  a  regular 
circulation  of  things  amongst  the  various  groups.  The  Tjunguri 
man's  things  descend  to  a  Thakomara;  a  Thakomara  man's 
things  go  to  a  Thapanunga ;  a  Thapanunga  man's  things  go  to  a 
Tjambin ;  and  finally,  a  Tjambin's  things  go  to  a  Tjunguri. 


Chapter  VIII 
THE   POINT   BARROW  ESKIMO  ^ 

******* 

1.  PSYCHICAL  CHARACTERISTICS 

As  a  rule  they  are  quick-witted  and  intelligent,  and  show  a  great 
capacity  for  appreciating  and  learning  useful  things,  especially 
mechanical  arts.  In  disposition  they  are  light-hearted  and  cheer- 
ful, not  easily  cast  down  by  sorrow  or  misfortune,  and  though 
sometimes  quick-tempered,  their  anger  seldom  lasts  long.^  They 
have  a  very  keen  sense  of  humor,  and  are  fond  of  practical  jokes, 
which  they  take  in  good  part,  even  when  practiced  on  themselves. 
They  are  generally  peaceable.  We  did  not  witness  a  single  quarrel 
among  the  men  during  the  two  years  of  our  stay,  though  they  told 
us  stories  of  fatal  quarrels  in  former  years,  in  which  firearms  were 
used.  Liquor  may  have  been  the  cause  of  these  fights,  as  it  is  said 
to  have  been  of  the  only  suicide  I  ever  heard  of  among  them,  which 
I  am  informed  by  Capt.  E.  E.  Smith,  the  whaling  master  already 
referred  to,  occurred  in  1885  at  Nuwuk.  Disagreements  between 
man  and  wife,  however,  sometimes  lead  to  blows,  in  which  the 
man  does  not  always  get  the  best  of  it. 

When  the  station  w^as  first  established  many  of  the  natives  began 
pilfering  from  our  stores,  but  they  soon  learned  that  by  so  doing 
they  cut  themselves  off  from  the  privilege  of  visiting  the  station 
and  enjoying  the  opportunity  for  trading  which  it  afforded,  and 
were  glad  to  promise  to  refrain  from  the  practice.  This  promise 
was  very  well  observed,  though  I  think  wholly  from  feelings  of  self- 
interest,  as  the  thieves  when  detected  seemed  to  have  no  feeling  of 
shame.     Some,  I  believe,  never  yielded  to  the  temptation.  There 

1  [By  John  Murdoch.  Reprinted,  by  permission,,  from  the  9tli  An- 
nual Report  of  the  Bureau  of  American  Ethnology  (The  Smithsonian  Insti- 
tution). A  bibliography  of  Eskimo  ethnography  by  Mr.  Murdoch  is  found 
at  pp.  21-25  of  this  report.  This  Ust  is  referred  to  for  complete  titles  of  the 
works  which  are  entered  in  the  notes  which  follow.] 

^  Holm  calls  the  East  Greenlanders  "et  meget  livligt  FolkefsBrd.'* 
"  Geogr.  Tidskrift,"  vol.  8,  p.  96. 

237 


238  •  RETARDED   PEOPLES  [Pabt  II. 

was  seldom  any  difficulty  in  obtaining  restitution  of  stolen  articles, 
as  the  thief's  comrades  would  not  attempt  to  shield  him,  but  often 
voluntarily  betrayed  him.  They  acknowledged  that  there  was 
considerable  thieving  on  board  of  the  ships,  but  the  men  of  Utkiav- 
wifi  tried  to  lay  the  blame  on  the  Nuwuk  people,  and  we  may 
suppose  that  the  charge  was  reciprocated,  as  was  the  case  regarding 
the  theft  of  the  Plover^ s  sails. ^  We  also  heard  of  occasional  thefts 
among  themselves,  especially  of  seals  left  on  the  ice  or  venison 
buried  in  the  snow,  but  men  who  were  said  to  be  thieves  did  not 
appear  to  lose  any  social  consideration. 

Robb^y  with  violence  appears  to  be  unknown.  We  never  saw 
or  heard  of  the  "burglar-alarm"  described  by  Dr.  Simpson,^  which 
I  am  inclined  to  believe  was  really  a  "demon  trap"  like  that 
described  by  Lieut.  Ray. 

They  are  in  the  main  truthful,  though  a  detected  lie  is  hardly  con- 
sidered more  than  a  good  joke,  and  considerable  trickery  is  prac- 
ticed in  trading.  For  instance,  soon  after  the  station  was  estab- 
lished they  brought  over  the  carcass  of  a  dog,  with  the  skin,  head, 
feet,  and  tail  removed,  and  attempted  to  sell  it  for  a  young  rein- 
deer ;  and  when  we  began  to  purchase  seal-oil  for  the  lamps  one 
woman  brought  over  a  tin  can  nearly  filled  with  ice,  with  merely  a 
layer  of  oil  on  top. 

Clothing  and  other  articles  made  especially  for  sale  to  us  were 
often  very  carelessly  and  hastily  made,  while  their  own  things  were 
always  carefully  finished.^ 

Their  affection  for  each  other,  especially  for  their  children,  is 
strong,  though  they  make  little  show  of  grief  for  bereavement,  and 
their  minds  are  easily  diverted  by  amusements.  I  am  inclined  to 
believe,  however,  from  some  cases  I  have  observed,  that  grief  is 
deeper  and  more  permanent  than  superficial  appearances  would 
indicate. 

Their  curiosity  is  unbounded,  and  they  have  no  hesitation  in 
gratifying  it  by  unlimited  questioning.  All  who  have  read  the 
accounts  of  the  Eskimo  character  given  by  explorers  in  other  parts 

1  Simpson,  "  Observations  on  the  Western  Eskimo  "  (London,  1875), 
p.  248. 

2  Op.  ciL,  p.  247. 

'Compare  Nordenskidld's  experience  in  Siberia.  The  "Chukches" 
sold  him  skinned  foxes  with  the  head  and  feet  cut  off  for  hares  ("Vega," 
vol.  1,  p.  448),  young  ivory  gulls  for  ptarmigan,  and  a  dog's  skull  for  a 
seal's  (vol.  2,  p.  137).  Besides,  "While  their  own  things  were  always 
made  with  the  greatest  care,  all  that  they  did  especially  for  us  was  done 
with  extreme  carelessness"  (ibid.).  The  Eskimos  at  Hotham  Inlet  also 
tried  to  sell  Capt.  Beechey  fishskins  sewed  together  to  represent  fish. 
("Voyage,"  p.  285.). 


Chap.  VIII,  §  2.]  THE   POINT   BARROW   ESKIMO  239 

of  the  Arctic  regions  will  recognize  this  as  a  familiar  trait.  We 
also  found  the  habit  of  begging  at  first  quite  as  offensive  among 
some  of  these  people  as  other  travelers  have  found  it,  but  as  they 
grew  better  acquainted  with  us  they  ceased  to  beg  except  for  trifling 
things,  such  as  a  chew  of  tobacco  or  a  match.  Some  of  the  better 
class  never  begged  at  all.  Some  of  them  seemed  to  feel  truly 
grateful  for  the  benefits  and  gifts  received,  and  endeavored  by  their 
general  behavior,  as  well  as  in  more  substantial  ways,  to  make  some 
adequate  return.  Others  appeared  to  think  only  of  what  they 
might  receive. 

Hospitality  is  a  universal  virtue.  Many  of  them  from  the  begin- 
ning of  our  acquaintance  with  them,  showed  the  greatest  friendli- 
ness and  willingness  to  assist  us  in  every  way,  while  others,  espe- 
cially if  there  were  many  of  them  together,  were  inclined  to  be  in- 
solent, and  knives  were  occasionally  drawn  in  sudden  fits  of  passion. 
These  "roughs,"  however,  soon  learned  that  behavior  of  this  sort 
was  punished  by  prompt  ostracism  and  threats  of  severer  discipline, 
and  before  the  first  nine  months  were  past  we  had  established  the 
most  friendly  relations  with  the  whole  village  at  Cape  Smyth. 
Some  of  those  who  were  at  first  most  insolent  became  afterwards 
our  best  friends.  Living  as  these  people  do  at  peace  w^ith  their 
neighbors,  they  would  not  be  expected  to  exhibit  the  fierce  martial 
<iourage  of  many  other  savages,  but  bold  whalemen  and  venturous 
ice-hunters  can  not  be  said  to  lack  bravery. 

In  their  dealings  with  white  men  the  richer  and  more  influential  \ 
among  them  at  least  consider  themselves  their  equals  if  not  their   / 
superiors,  and  they  do  not  appreciate  the  attitude  of  arrogant/ 
superiority  adopted  by  many  white  men  in  their  intercourse  witl/ 
so-called  savages.     Many  of  them  show  a  grace  of  manner  and  a 
natural  delicacy  and  poHteness  which  is  quite  surprising.     I  have 
known  a  young  Eskimo  so  polite  that  in  conversing  with  Lieut. 
Ray  he  would  take  pains  to  mispronounce  his  words  in  the  same 
way  as  the  latter  did,  so  as  not  to  hurt  his  feelings  by  correcting 
Mm  bluntly.^ 

2.  TRIBAL  PHENOMENA    l^ 

We  were  unable  to  discover  among  these  people  the  slightest 
trace  of  tribal  organization  or  of  divisjoKmtn  j>;pntps,  and  in  this 
our  observations  agree  with  those  of  all  who  have  studied  the 

1  Compare  "Vega,"  vol.  1,  p.  489.  The  Chukches  were  "so  courteous 
as  not  to  correct  but  to  adopt  the  mistakes  in  the  pronunciation  or  meaning 
of  words  that  were  made  on  the  Vega.'' 


240  RETARDED   PEOPLES  [Part  II. 

Eskimos  elsewhere.  They  call  themselves  as  a  race  ''In'uin,"  a 
term  corresponding  to  the  "Inuit"  of  other  dialects,  and  meaning 
"people,"  or  ''human  beings."  Under  this  name  they  include 
white  men  and  Indians  as  well  as  Eskimo,  as  is  the  case  in  Green- 
land and  the  Mackenzie  River  district,  and  probably  also  every- 
where else,  though  many  writers  have  supposed  it  to  be  applied 
by  them  only  to  their  own  race. 

They  have  however  special  names  for  the  former  two  races. 
The  people  of  any  village  are  known  as  ''the  inhabitants  of  such 
and  such  a  place  ;"  for  instance,  Nuwii'nmiun,  "the  inhabitants  of 
the  point;"  Utkiavwinmiun,  "the  inhabitants  of  Utkiavwin;" 
Kufimiun  (in  Greenlandic  "Kungmiut"),  "the  people  who  live 
on  the  river."  The  people  about  Norton  Sound  speak  of  the  north- 
ern Eskimo,  especially  those  of  Point  Barrow  and  Cape  Smyth,  as 
"Kuiimu^dlm,"  which  is  not  a  name  derived  from  a  location,  but 
a  sort  of  nickname,  the  meaning  of  which  was  not  ascertained. 
The  Point  Barrow  natives  do  not  call  themselves  by  this  name,  but 
apply  it  to  those  people  whose  winter  village  is  at  Demarcation 
Point  (or  Herschel  Island).  This  word  appears  in  the  corrupted 
form  "KokmuUit,"  as  the  name  of  the  village  at  Nuwuk  on 
Petroff's  map.  Petroff  derived  his  information  regarding  the 
northern  coast  at  second-hand  from  people  who  had  obtained 
their  knowledge  of  names,  etc.,  from  the  natives  of  Norton 
Sound. 

The  people  of  the  two  villages  under  consideration  frequently  go 
backward  and  forward,  sometimes  removing  permanently  from  one 
village  to  the  other,  while  strangers  from  distant  villages  sometimes 
winter  here,  so  that  it  was  not  until  the  end  of  the  second  year, 
when  we  were  intimately  acquainted  with  everybody  at  Utkiav- 
win, that  we  could  form  anything  like  a  correct  estimate  of  the 
population  of  this  village.^  This  we  found  to  be  about  140  souls. 
As  well  as  we  could  judge,  there  were  about  150  or  160  at  Nuwuk. 
These  figures  show  a  great  decrease  in  numbers  since  the  end  of 
1853,  when  Dr.  Simpson  ^  reckoned  the  population  of  Nuwuk  at 
309.  During  the  2  years  from  September,  1881,  to  August,  1883, 
there  were  fifteen  deaths  that  we  heard  of  in  the  village  of  Utkiav- 
win alone,  and  only  two  children  born  in  that  period  survived. 
With  this  ratio  between  the  number  of  births  and  deaths,  even  in  a 
period  of  comparative  plenty,  it  is  difficult  to  see  how  the  race  can 

^  See  "Approximate  Census,"  etc.,  Report  of  Point  Barrow  Exp.> 
p.  49. 

2  Op.  ciL,  p.  237. 


Chap.  VIII,  §3.]  THE   POINT   BARROW   ESKIMO  241 

escape   speedy   extinction,    unless   by   accessions   from    without, 
which  in  their  isolated  situation  they  are  not  likely  to  receive.^ 

3.  DOMESTIC  LIFE 

Mjwpieh^e.  —  As  far  as  we  could  learn,  the  marriage  relation  was 
entered  upon  generally  from  reasons  of  ird^rest  or  convenience,  with 
very  little  regard  for  affection,  as  we  understand  it,  though  there 
often  appeared  to  be  a  warin  attachment  between  married  people. 
A  man  desires  to  obtain  a  wife  who  will  perform  her  household 
duties  well  and  faithfully,  and  will  be  at  the  same  time  an  agreeable 
companion,  while  he  often  plans  to  marry  into  a  rich  or  influential 
family.  The  woman,  on  the  other  hand,  appears  to  desire  a 
husband  who  is  industrious  and  a  good  hunter.  There  were, 
nevertheless,  some  indications  that  real  love  matches  sometimes 
took  place.  Marriages  are  usually  arranged  by  the  parents  of  the 
contracting  parties,  •  sometimes  when  the  principals  are  mere 
children.  We  knew  of  one  case  when  a  young  man  of  about  twenty- 
two  offered  himself  as  the  prospective  husband  of  a  girl  of  eight 
or  ten,  when  she  should  reach  a  marriageable  age.  This  practice  of 
child  betrothal  seems  to  be  practically  universal  among  the  Eskimo 
everywhere.^ 

Dr.  Simpson,  in  describing  the  marriage  customs  at  Point  Bar- 
row, says : 

The  usual  case  is,  that  as  soon  as  the  young  man  desires  a  partner  and 
is  able  to  support  one,  his  mother  selects  a  girl  according  to  her  judgment 
or  fancy,  and  invites  her  to  the  hut,  where  she  first  takes  the  part  of  a 
*'kivgak"  or  servant,  having  all  the  cooking  and  other  kitchen  duties  to 
perform  during  the  day,  and  returns  to  her  home  at  night.  If  her  conduct 
proves  satisfactory,  she  is  further  invited  to  become  a  member  of  the 
family  .3 

We  only  knew  this  to  be  done  on  one  occasion ;  and  on  the  con- 
trary knew  of  several  cases  where  the  bridegroom  became  a  member 
of  the  wife's  family. 

1  Petroff's  estimate  (Report,  etc.,  p.  4)  of  the  number  of  natives  on 
this  part  of  the  Arctic  coast  is  much  too  large.  He  gives  the  population 
of  "Ootiwakh"  (Utkiavwin)  as  225.  Refuge  Inlet  (where  there  is  merely 
a  summer  camp  of  Utkiavwinmiun),  40,  and  "Kokmullit,"  200.  The 
supposed  settlement  of  50  inhabitants  at  the  Colville  River  is  also  a  mere 
summer  camp,  not  existing  in  the  winter. 

2  Compare  Crantz,  vol.  1,  p.  159  (Greenland);  Kumlien,  "Contri- 
butions," p.  164  (Cumberland  Gulf);  //^aZ^,  "Arctic  Researches,"  p.  567 
(Baffin  Land);  Parry,  "2nd  Voyage,"  p.  528  (Fury  and  Hecla  Straits) ; 
Schwatka,  "Science,"  vol.  4,  No.  98,  p.  544  (King  William's  Land); 
Gilder,  "Schwatka's  Search,"  p.  250  (Hudson's  Bay) ;  Franklin,  "First 
Exp.,"  vol.  2,  p.  41  (Chesterfield  Inlet);  Hooper,  "Tents,"  etc.,  p.  209 
(Plover  Bay) ;   Nordenskiold,  "Vega,"  vol.  2,  p.  26  (Pitlekaj). 

3  Op.  ciL,  p.  252. 


242  RETARDED   PEOPLES  [Part  II. 

One  youth,  who  had  had  his  Hps  pierced  for  the  labrets  just 
previously  to  our  arrival,  was,  we  soon  learned,  betrothed  to  a 
young  girl  at  Nuwuk.  This  girl  frequently  came  down  from 
Nuwuk  and  visited  her  lover's  family,  staying  several  days  at  a 
time,  but  we  could  not  discover  that  she  was  treated  as  a  servant. 
She  went  with  them  to  the  spring  deer  hunt,  but  we  were  distinctly 
given  to  understand  that  the  young  couple  would  not  be  married 
till  after  the  return  from  this  hunt.  When  the  season  came  for 
catching  reindeer  fawns,  the  couple  started  off  together,  with  sled 
and  dogs  and  camp  equipage  in  pursuit  of  them,  and  always 
afterwards  were  considered  as  man  and  wife. 

Most  of  .the  marriages  took  place  before  we  heard  of  them,  so  that 
we  had  no  opportunity  for  learning  what  ceremony,  if  any,  oc- 
curred at  the  time.  Some  of  the  party,  however,  who  went  over 
to  make  a  visit  at  Utkiavwiii  one  evening,  found  the  house  full  of 
people,  who  were  singing  and  dancing,  and  were  told  that  this  was 
to  celebrate  the  marriage  of  the  daughter  of  the  house.  Marriage 
ceremonies  appear  to  be  rare  among  the  Eskimo.  A  pretended 
abduction,  with  the  consent  of  the  parents,  is  spoken  of  by  Bessels 
at  Smith  Sound  ^  and  Egede  in  Greenland  (p.  142),  and  Kumlien 
was  informed  that  certain  ceremonies  were  sometimes  practiced 
at  Cumberland  Gulf  .^  Elsewhere  I  have  not  been  able  to  find  any 
reference  to  the  subject.  A  man  usually  selects  a  wife  of  about 
his  own  age,  but  reasons  of  interest  sometimes  lead  to  a  great 
disparity  of  age  between  the  two.  I  do  not  recollect  any  case 
where  an  old  man  had  a  wife  very  much  younger  than  himself, 
but  we  knew  of  several  men  who  had  married  widows  or  divorced 
women  old  enough  to  be  their  mothers,^  and  in  one  remarkable 
case  the  bride  was  a  girl  of  sixteen  or  seventeen,  and  the  husband  a 
lad  apparently  not  over  thirteen,  who  could  barely  have  reached 
the  age  of  puberty. 

This  couple  were  married  late  in  the  winter  of  1882-'83,  and 
immediately  started  off  to  the  rivers,  deer  hunting,  where  the  young 
husband  was  very  successful.  This  union,  however,  appeared  to 
have  been  dissolved  in  the  summer,  as  I  believe  the  girl  was  living 
with  another  and  older  man  when  we  left  the  station.  In  this 
case,  the  husband  came  to  live  with  the  wife's  family. 

As  is  the  case  with  most  Eskimo,  most  of  the  men  content  them- 

1  "Naturalist,"  vol.  18,  pt.  9,  p.  877. 

2  "Contributions,"  p.  16. 

^  Compare  Holm's  observations  in  East  Greenland  —  ^'idet  et  ganske 
ungt  Menneske  kan  vsere  gift  med  en  Kone,  som  kunde  vsere  hans  Moder." 
"Geografisk  Tidskrift,"  vol.  8,  p.  91. 


"Jhap.  VIII,  §  3.]  THE    POINT   BARROW   ESKIMO  243 

selves  with  one  wife,  though  a  few  of  the  wealthy  men  have  two 
each.  I  do  not  recollect  over  half  a  dozen  men  in  the  two  villages 
who  had  more  than  one  wife  each,  and  one  of  these  dismissed  his 
younger  wife  during  our  stay.  We  never  heard  of  a  case  of  more 
than  two  wives.  As  well  as  we  could  judge,  the  marriage  bond  was 
regarded  simply  as  a  contract  entered  into  by  the  agreement  of  the 
contracting  parties  and,  without  any  formal  ceremony  of  divorce, 
easily  dissolved  in  the  same  way,  on  account  of  incompatibility  of 
temper,  or  even  on  account  of  temporary  disagreements. 

We  knew  of  one  or  two  cases  where  wives  left  their  husbands  on 
account  of  ill  treatment.  One  of  these  cases  resulted  in  a  perma- 
nent separation,  each  of  the  couple  finally  marrying  again,  though 
the  husband  for  a  long  time  tried  his  best  to  get  his  wife  to  come 
back  to  him.  In  another  case,  where  the  wife  after  receiving  a 
beating  ran  away  to  Nuwuk,  and,  as  we  were  told,  married  another 
man,  her  first  husband  followed  her  in  a  day  or  two  and  either  by 
violence  or  persuasion  made  her  come  back  with  him.  They 
afterwards  appeared  to  live  together  on  perfectly  good  terms. 

On  the  other  hand,  we  know  of  several  cases  where  men  dis- 
carded wives  who  were  unsatisfactory  or  made  themselves  disagree- 
able. For  instance,  the  younger  Tunazu,  when  we  first  made  his 
acquaintance,  was  married  to  a  widow  very  much  his  senior,  who 
seemed  to  have  a  disagreeable  and  querulous  temper,  so  that  we 
were  not  surprised  to  hear  in  the  spring  of  1882  that  they  were 
separated  and  Tunazu  married  to  a  young  girl.  His  second 
matrimonial  venture  was  no  more  successful  than  his  first,  for  his 
young  wife  proved  to  be  a  great  talker.  As  he  told  us :  "  She 
talked  all  the  time,  so  that  he  could  not  eat  and  could  not  sleep." 
So  he  discarded  her,  and  when  we  left  the  station  he  had  been  for 
some  time  married  to  another  old  widow. 

In  the  case  above  mentioned,  where  the  man  with  two  wives 
discarded  the  younger  of  them,  the  reason  he  assigned  was  that 
she  was  lazy,  would  not  make  her  own  clothes,  and  was  disobedient 
to  the  older  wife,  to  whom  he  was  much  attached.  As  he  said, 
Kakaguna  (the  older  wife)  told  her,  "Give  me  a  drink  of  water,'' 
and  she  said,  "No!"  so  Kakaguna  said,  "Go!"  and  she  went. 
He  did  not  show  any  particular  concern  about  it. 

Dr.  Simpson  says,  "A  great  many  changes  take  place  before  a 
permanent  choice  is  made;"  and  again,  "A  union  once  apparently 
settled  between  parties  grown  up  is  rarely  dissolved."  ^  And  this 
agrees  with  our  experience.     The  same  appears  to  have  been  the 

1  Op.  cit,  p.  253. 


244  RETARDED   PEOPLES  [Part  II. 

case  in  Greenland.  Crantz  ^  says,  ''Such  quarrels  and  separations 
only  happen  between  people  in  their  younger  years,  who  have 
married  without  due  forethought.  The  older  they  grow,  the  more 
they  love  one  another." 

Easy  and  unceremonious  divorce  appears  to  be  the  usual  custom 
among  Eskimo  generally,  and  the  divorced  parties  are  always  free 
to  marry  again. ^  The  only  writer  who  mentions  any  ceremony  of 
divorce  is  Bessels,  who  witnessed  such  among  the  so-called  ''Arctic 
Highlanders"  of  Smith  Sound  ("  Naturalist,"  vol.  18,  pt.  9,  p.  877). 
Dr.  Simpson,  in  the  paragraph  referred  to  above,  says  that  "A  man 
of  mature  age  chooses  a  wife  for  himself  and  fetches  her  home, 
frequently,  to  all  appearance,  much  against  her  will."  The  only 
case  of  the  kind  which  came  to  our  notice  was  in  1883,  when  one 
of  the  Kilauwitawin  men  attempted  by  blows  to  coerce  Adwu'na, 
an  Utkiavwifi  girl,  to  live  with  him,  but  was  unsuccessful. 
y^k  curious  custom,  not  pecuHar  to  these  people,  is  the  habit  of 
lexchanging  wives  temporarily.  For  instance,  one  man  of  our 
acquaintance  planned  to  go  to  the  rivers  deer  hunting  in  the 
summer  of  1882,  and  borrowed  his  cousin's  wife  for  the  expedition,  as 
she  was  a  good  shot  and  a  good  hand  at  deer  hunting,  w^hilehisown 
wife  went  with  his  cousin  on  the  trading  expedition  to  the  eastward. 
On  their  return  the  wives  went  back  to  their  respective  husbands. 

The  couples  sometimes  find  themselves  better  pleased  with  their 
new  mates  than  with  the  former  association,  in  which  case  the 
exchange  is  made  permanent.  This  happened  once  in  Utkiavwifi 
to  our  certain  knowledge.  This  custom  has  been  observed  at 
Fury  and  Hecla  Straits,^  Cumberland  Gulf,"^  and  in  the  region 
around  Repulse  Bay,  where  it  seems  to  be  carried  to  an  extreme. 

According  to  Gilder  ^  it  is  a  usual  thing  among  friends  in  that 
region  to  exchange  wives  for  a  week  or  two  about  every  two  months. 
Among  the  Greenlanders  the  only  custom  of  the  kind  mentioned  is 

1  Vol.  1,  p.  160. 

2  "They  often  repudiate  and  put  away  their  wives,  if  either  they  do 
not  suit  their  humors,  or  else  if  they  are  barren,  .  .  .  and  marry  others." 
Egede,  "Greenland,"  p.  143.  Compare  also  Crantz,  vol.  1,  p.  160; 
Parry,  "2nd  Voyage,"  p.  528  (Fury  and  Hecla  Straits) ;  Kumlien, 
"Contributions,"  p.  17  (Cumberland  Gulf);  and  Hooper,  "Tents,"  etc., 
p.  100  —  "repudiation  is  perfectly  recognized,  and  in  instances  of  mis- 
conduct and  sometimes  of  dislike,  put  in  force  without  scruple  or  censure. 
.  .  .  The  rejected  wife  .  .  .  does  not  generally  wait  long  for  another 
husband;"  (Plover  Bay).  Compare  also  Holm,  "Geografisk  Tidskrift," 
vol.  8,  pp.  91-92,  where  he  gives  an  account  of  marriage  and  divorce 
in  east  Greenland,  remarkably  like  what  we  observed  at  Point  Barrow. 

»  Parry,  "2nd  Voyage,"  p.  528. 
*  Kumlien,  "Contributions,"  p.  16. 
^  "Schwatka's  Search,"  p.  197. 


Chap.  VIII,  §3.1  THE  POINT  BARROW  ESKIMO  245 

the  temporary  exchange  of  wives  at  certain  festivals  described  by 
Egede.^ 

Holm  also  describes  "the  game  of  putting  out  the  lamps,"  or 
^'changing  wives,"  as  a  common  winter  sport  in  East  Greenland. 
He  also,  however,  speaks  of  the  temporary  exchange  of  wives 
among  these  people  much  as  described  elsewhere.^ 

I  am  informed  by  some  of  the  whalemen  who  winter  in  the  neigh- 
borhood of  Repulse  Bay,  that  at  certain  times  there  is  a  general 
exchange  of  wives  throughout  the  village,  each  woman  passing  from 
man  to  man  till  she  has  been  through  the  hands  of  all,  and  finally 
returns  to  her  husband.  All  these  cases  seem  to  me  to  indicate 
that  the  Eskimo  have  not  wholly  emerged  from  the  state  called 
communal  marriage,  in  which  each  woman  is  considered  as  the 
wife  of  every  man  in  the  community. 

Standing  and  treatment  of  women.  —  The  women  appear  to  stand 
on  a  footing  of  perfect  eguaTi^v  with  the  men  both  in  the  family 
and  in  the  community.  The  wife  is  the  constant  and  trusted  com- 
panion of  the  man  in  everything  except  the  hunt,  and  her  opinion 
is  sought  in  every  bargain  or  other  important  undertaking.^ 

Dr.  Simpson's  description  ^  of  the  standing  of  the  women  at 
Point  Barrow  in  his  time  is  so  true  at  the  present  day  that  I  may 
be  pardoned  for  quoting  the  whole  of  it : 

A  man  seems  to  have  unlimited  authority  in  his  own  hut,  but,  as  with 
few  exceptions  his  rule  is  mild,  the  domestic  and  social  position  of  the 
women  is  one  of  comfort  and  enjoyment.  As  there  is  no  affected  dignity 
or  importance  in  the  men,  they  do  not  make  mere  slaves  and  drudges  of 
the  women ;  on  the  contrary,  they  endure  their  full  share  of  fatigue  and 
hardship  in  the  coldest  season  of  the  year,  only  calling  in  the  assistance 
of  the  women  if  too  wearied  themselves  to  bring  in  the  fruits  of  their  own 
industry  and  patience ;  and  at  other  seasons  the  women  appear  to  think 
it  a  privation  not  to  share  the  labors  of  the  men.  A  woman's  ordinary 
occupations  are  sewing,  the  preparation  of  skins  for  making  and  mending, 
cooking,  and  the  general  care  of  the  supplies  of  provisions.  Occasionally 
in  the  winter  she  is  sent  out  on  the  ice  for  a  seal  which  her  husband  has 
taken,  to  which  she  is  guided  by  his  footmarks ;  and  in  spring  and  summer 
she  takes  her  place  in  the  boat  if  required. 

The  statement  in  the  first  sentence  that  the  husband's  rule  is 
mild  is  hardly  consistent  with  that  on  the  following  page  that 
*' obedience  seems  to  be  the  great  virtue  required,  and  is  enforced 
by  blows  when  necessary,  until  the  man's  authority  is  estabUshed." 

1  "Greenland,"  p.  139.  2  ««Geogr.  Tids.,"  vol.  8,  p.  92. 

3  Compare  Parry,  "2nd  Voyage,"  pp.  526-528,  Nordenskiold  ("Vega,'* 
vol.  1,  p.  449)  :  The  women  are  "treated  as  the  equals  of  the  men,  and  the 
wife  was  always  consulted  by  the  husband  when  a  more  important  bar- 
gain than  usual  was  to  be  made." —  (Pitlekaj.)  This  statement  is  appli- 
cable, word  for  word,  to  the  women  of  Point  Barrow. 

4  Op.  ciL,  p.  252. 


246  RETARDED   PEOPLES  [Part  II, 

According  to  our  experience  the  first  statement  is  nearer  the  truth. 
We  heard  of  few  cases  of  wife-beating,  and  those  chiefly  among  the 
younger  men.  Two  brothers,  who  habitually  ill-treated  their 
wives,  were  looked  upon  with  disfavor,  by  some  of  our  friends  at 
least.  We  heard  of  one  case  where  a  stalwart  wife  turned  the 
tables  on  her  husband  who  attempted  to  abuse  her,  giving  him  a 
thorough  beating  and  then  leaving  his  house. 

Wife  beating  was  not  uncommon  among  the  Greelanders.^  We 
did  not  learn  whether  a  woman  brought  anything  like  a  dowry, 
but  Simpson^  says:  ''The  woman's  property,  consisting  of  her 
beads  and  other  ornaments,  her  needlecase,  knife,  etc.^  are  con- 
sidered her  own ;  and  if  a  separation  takes  place  the  clothes  and 
presents  are  returned  and  she  merely  takes  away  with  her  whatever 
she  brought."  According  to  Crantz  ^  a  widow  in  Greenland  had 
no  share  of  her  husband's  property,  but  owns  only  what  she  brought 
with  her,  and  I  am  inclined  to  believe  that  this  is  the  case  at  Point 
Barrow. 

One  widow -of  my  acquaintance,  who  appeared  to  have  no  rela- 
tives in  the  village,  was  reduced  almost  to  beggary,  though  her 
husband  had  been  quite  well-to-do.  All  his  property  and  even  his 
boy  were  taken  from  her  by  some  of  the  other  natives.  Widows 
who  have  well-to-do  relatives,  especially  grown-up  sons,  are  well 
taken  care  of  and  often  marry  again.  According  to  Captain 
Parry ,^  unprotected  widows  were  robbed  at  Iglulik. 

Children.  —  From  the  small  number  of  births  which  occurred 
during  out  stay  at  Point  Barrow,  we  were  able  to  ascertain  little  in 
regard  to  this  subject.  When  a  woman  is  about  to  be  confined,  she 
is  isolated  in  a  little  snow  hut  in  winter  or  a  little  tent  in  summer,  in 
which  she  remains  for  some  time  —  just  how  long  we  were  unable 
to  learn.  Captain  Herendeen  saw  a  pregnant  woman  in  Utkiav- 
win  engaged,  on  March  31,  in  building  a  Uttle  snow  house,  which 
she  told  him  was  meant  for  her  confinement,  but  she  had  evidently 
somehow  miscalculated  her  time,  as  her  child  was  not  born  till 
much  later,  when  the  people  had  moved  into  the  tents.  She  and 
her  child  lived  in  a  little  tent  on  the  beach  close  to  her  husband's 
tent,  evidently  in  a  sitting  position,  as  the  tent  was  not  large  enough 
for  her  to  lie  down  in.  Her  husband  was  desirous  of  going  off  on 
the  summer  deer  hunt,  but,  under  the  circumstances,  custom  for- 
bade his  leaving  the  neighborhood  of  the  village  till  the  ice  at  sea 

1  See  Egede,  p.  144,  "for  according  to  them  it  signifies  nothing  that  a 
man  beats  his  wife." 

2  Op.  cit.,  p.  253.  3  Vol.  1,  p.  165.  ^  "2nd  Voyage,"  p.  522. 


Chap.  VIII,  §3.]  THE   POINT   BARROW   ESKIMO  247 

broke  up.  The  same  custom  of  isolating  the  women  during  child- 
birth has  been  observed  by  Kumhen  and  Boas  at  Cumberland  Gulf/ 
and  in  Greenland  the  mother  was  not  allowed  to  eat  or  drink 
in  the  open  air.^  Lisiansky  describes  a  similar  practice  in  Kadiak 
in  1805,^  and  Klutschak  also  notes  it  among  the  Aivillirmiut.* 

The  custom  of  shutting  up  the  mother  and  child  in  a  snow  house 
in  winter  must  be  very  dangerous  to  the  infant,  and,  in  fact,  the 
only  child  that  was  born  in  winter  during  our  stay  lived  but  a  short 
time.  Capt.  Herendeen  visited  this  family  at  Nuwuk  shortly 
after  the  death  of  the  child,  and  saw  the  snow  house  in  which  the 
woman  had  been  confined.  He  was  about  to  take  a  drink  of  water 
from  a  dipper  which  he  saw  in  the  iglu,  but  was  prevented  by  the 
other  people,  who  told  him  that  this  belonged  to  the  mother  and 
that  it  was  ''bad"  for  anyone  else  to  use  it.  In  Greenland  the 
mother  had  a  separate  water  pail.^  For  a  time,  our  visitors  from 
Utkiavwin  were  very  much  afraid  to  drink  out  of  the  tin  pannikin 
in  our  washroom,  for  fear  it  had  been  used  by  Niaksara,  a  woman 
who  had  recently  suffered  a  miscarriage.  One  man  told  us  that  a 
sore  on  his  face  was  caused  by  his  having  inadvertently  done  so. 
This  same  woman  was  forbidden  to  go  out  among  the  broken  ice 
of  the  land  floe,  during  the  spring  succeeding  her  miscarriage, 
though  she  might  go  out  on  the  smooth  shore  ice.  Her  husband 
also  was  forbidden  to  work  with  a  hammer  or  adz  or  to  go  seal- 
catching  for  some  time  after  the  mishap. 

Children  are  nursed  until  they  are  3  or  4  years  old,  according  to 
what  appears  to  be  the  universal  habit  among  Eskimo,  and  which 
is  probably  due,  as  generally  supposed,  to  the  fact  that  the  animal 
food  on  which  the  parents  subsist  is  not  fit  for  the  nourishment  of 
young  children.  The  child  is  carried  naked  on  the  mother's 
back  under  her  clothes,  and  held  up  by  the  girdle,  tied  higher  than 
usual.  When  she  wishes  to  nurse  it,  she  loosens  her  girdle  and 
sHps  it  round  to  the  breast. 

According  to  Capt.  Holm,^  in  East  Greenland,  "  De  opvoxe  i  den 
mest  ubundne  Frihed.  Forseldrene  nsere  en  ubeskrivelig  Kjser- 
lighed  til  dem  og  straffe  dem  derfor  aldrig,  selv  om  de  ere  nok  saa 
gjenstridige.  Man  maa  imidlertid  beundre,  hvor  velopdragne  de 
smaa  alligevel  ere . ' ' 

1  "Contributions,"  p.  28,  and  "Central  Eskimo,"  p.  610. 

2  Egede,  p.  192;   Crantz,  vol.  1,  p.  215,  and  Rink,  ''Tales,"  etc.,  p.  54. 

3  "Voyage,"  p.  200.  ^  "Als  Eskimo,"  etc.,  p.  199. 

^  Egede,  p.  192 ;   Crantz,  Vol.  1,  p.  215,  "no  one  else  must  drink  out  of 
their  cup ;"   and  Rink,  "Tales  and  Traditions,"  p.  54. 
«  "Geografisk  Tidskrift,"  vol.  8,  p.  91. 


248  RETARDED   PEOPLES  [Part  II. 

Parry  speaks  still  more  strongly  :  ^ 

The  affection  of  parents  for  their  children  was  frequently  displayed 
by  these  people,  not  only  in  the  mere  passive  indulgence  and  abstinence 
from  corporal  punishment  for  which  Esquimaux  have  been  before  remarked, 
but  by  a  thousand  playful  endearments  also,  such  as  parents  and  nurses 
practice  in  our  own  country.  Nothing,  ind^f^rl  ^^^  ^*^^1  p^^pf^pid  th^  kind- 
■n^ss  w\lh  which  th^y  trpiat  fjimv  ^mUix^nT'.  .  .  It  must  be  confessed, 
tSdeed,  that  the  gentleness  and  docility  of  the  children  are  such  as  to  occa- 
sion their  parents  little  trouble  and  to  render  severity  towards  them  quite 
unnecessary.  Even  from  their  earliest  infancy,  they  possess  that  quiet 
disposition,  gentleness  of  demeanor,  and  uncommon  evenness  of  temper, 
for  which  in  more  mature  age  they  are  for  the  most  part  distinguished. 
Disobedience  is  scarcely  ever  known;  a  word  or  even  a  look  from  a 
parent  is  enough ;  and  I  never  saw  a  single  instance  of  that  frowardness 
and  disposition  to  mischief  which,  in  our  youth,  so  often  requires  the  whole 
attention  of  a  parent  to  watch  over  and  to  correct.  They  never  cry  from 
trifling  accidents,  and  sometimes  not  even  from  very  severe  hurts,  at 
which  an  English  child  would  sob  for  an  hour.  It  is,  indeed,  astonishing 
to  see  the  indifference  with  which,  even  as  tender  infants,  they  bear  the 
numerous  blows  they  accidentally  receive  when  carried  at  their  -mothers* 
backs. 

I  should  be  willing  to  allow  this  passage  to  stand  as  a  description 
of  the  Point  Barrow  children.  It  is  interesting  to  compare  with 
these  passages  Nordenskiold's  account  ^  of  the  children  at  Pitlekaj, 
who,  if  not  as  he  and  other  writers  believe,  of  pure  Chukch  blood, 
are  at  any  rate  of  mixed  Chukch  and  Eskimo  descent : 

The  children  are  neither  chastised  nor  scolded.  They  are,  however, 
the  best  behaved  I  have  ever  seen.  Their  behavior  in  the  tent  is  equal 
to  that  of  the  best  brought  up  European  children  in  the  parlor.  They  are 
not  perhaps  so  wild  as  ours,  but  are  addicted  to  games  which  closely  re- 
semble those  common  among  us  in  the  country.  Playthings  ate  also  in 
use.  ...  If  the  parents  get  any  delicacy  they  always  give  each  of  their 
children  a  bit,  and  there  is  never  any  quarrel  as  to  the  size  of  each  child's 
portion.  If  a  piece  of  sugar  is  given  to  one  of  the  children  in  a  crowd 
it  goes  from  mouth  to  mouth  round  the  whole  company.  In  the  same  way 
the  child  offers  its  father  and  mother  a  taste  of  the  bit  of  sugar  or  piece 
of  bread  it  has  got.  Even  in  childhood  the  Chukchs  are  exceedingly 
patient.  A  girl  who  fell  down  from  the  ship's  stairs  head  foremost  and 
thus  got  so  violent  a  blow  that  she  was  almost  deprived  of  hearing  scarcely 
uttered  a  cry.  A  boy  three  or  four  years  of  age,  much  rolled  up  in  furs, 
who  fell  down  into  a  ditch  cut  in  the  ice  on  the  ship's  deck,  and  in  conse- 
quence of  his  inconvenient  dress  could  not  get  up,  lay  quietly  still  until 
he  was  observed  and  helped  up  by  one  of  the  crew. 

The  only  extraordinary  thing  about  the  Chukch  children  is  their 
large  number,  mentioned  by  the  same  author.^  This  looks  as  if  the 
infusion  of  new  blood  had  increased  the  fertility  of  the  race.  All 
authors  who  have  described  Eskimo  of  unmixed  descent  agree  in 
regard  to  the  generally  small  number  of  their  offspring.     Other 

1  "2nd  Voyage,"  p.  529.  ^  "  Vega,"  vol.  2,  p.  140. 

3  jjjid,^  vol.  1,  p.  449. 


Chap.  VIII,  §3.]  THE   POINT   BARROW   ESKIMO  249 

accounts  of  Eskimo  children  are  to  be  found  in  the  writings 
of  Bessels/  Crantz,^  Schwatka,^  Gilder/  J.  Simpson,^  and 
Hooper.^ 

The  custom  of  adoption  is  as  universal  at  Point  Barrow  as  it 
appears  to  be  among  the  Eskimo  generally,  and  the  adopted  chil- 
dren are  treated  by  the  parents  precisely  as  if  they  were  their  own 
flesh  and  blood.  Orphans  are  readily  provided  for,  as  there  are 
always  plenty  of  families  ready  and  willing  to  take  them,  and 
women  who  have  several  children  frequently  give  away  one  or  more 
of  them.  Families  that  have  nothing  but  boys  often  adopt  a  girl, 
and,  of  course,  vice  versa,  and  we  know  of  one  case  where  a  woman 
who  had  lost  a  young  infant  had  another  given  her  by  one  of  her 
friends. 

This  very  general  custom  of  giving  away  children,  as  well  as  the 
habit  already  mentioned  of  temporarily  exchanging  wives,  ren- 
dered it  quite  difficult  to  ascertain  the  parentage  of  any  person, 
especially  as  it  seems  to  be  the  custom  with  them  to  speak  of  first 
cousins  as  '^milu  atauzik"  (''one  breast,"  that  is,  brothers  and 
sisters).  While  a  boy  is  desired  in  the  family,  since  he  will  be  the 
support  of  his  father  when  the  latter  grows  too  old  to  hunt,  a  girl 
is  almost  as  highly  prized,  for  not  only  will  she  help  her  mother 
with  the  cares  of  housekeeping  when  she  grows  up,  but  she  is  likely 
to  obtain  a  good  husband  who  may  be  induced  to  become  a  mem- 
ber of  his  father-in-law's  familv.^ 


(a)     RIGHTS   AND   WRONGS 

I  have  already  spoken  of  the  feelings  of  these  people  in  regard  to 
offenses  against  property  and  crimes  of  violence.  As  to  the  rela- 
tions between  the  sexes  there  seems  to  be  the  most  complete 
absence  of  what  we  consider  moral  feeljjigs.  Promiscuous  sexual 
intercourse  between  married  or  unmarried  people,  or  even  among 
children,  appears  to  be  looked  upon  simply  as  a  matter  for  amuse- 
ment. As  far  as  we  could  learn  unchastity  in  a  girl  was  considered 
nothing  against  her,  and  in  fact  one  girl  who  was  a  most  abandoned 

1  "Naturalist,"  vol.  18,  pt.  9,  p.  874. 

2  "History  of  Greenland,"  vol.  1,  p.  162. 

3  "Science,"  vol.  4,  No.  98,  p.  544. 
*  "  Schwatka's  Search,"  p.  287. 

5  Op.  ciL,  p.  250.  «  "Tents,"  etc.,  pp.  24,  201. 

'  Accounts  of  this  custom  of  adoption  are  to  be  found  in  Crantz, 
vol.  1,  p.  165;  Parry,  "2nd  Voyage,"  p.  531;  Kumlien,  "Contribu- 
tions," p.  17;  Gilder,  "Schwatka's  Search,"  p.  247,  and  the  passage  con- 
cerning children  quoted  above,  from  Dr.  Simpson. 


250  RETARDED   PEOPLES  [Part  II. 

and  shameless  prostitute  among  the  sailors,  and  who,  we  were  told, 
had  had  improper  relations  with  some  of  her  own  race,  had  no 
difficulty  in  obtaining  an  excellent  husband. 

Remarks  of  the  most  indecent  character  are  freely  bandied  back 
and  forth  between  the  sexes  in  public,  and  are  received  with  shouts 
of  laughter  by  the  bystanders.  Nevertheless,  some  of  the  women, 
especially  those  of  the  wealthier  class,  preserve  a  very  tolerable 
degree  of  conjugal  fidelity  and  certainly  do  not  prostitute  them-  , 
selves  to  the  sailors.  I  believe  that  prostitution  for  gain  is  un-  1 
known  among  themselves,  but  it  is  carried  to  a  most  shameless 
extent  with  the  sailors  of  the  whaling  fleet  by  many  of  the  women, 
and  is  even  considered  a  laudable  thing  by  the  husbands  and  fathers, 
who  are  perfectly  willing  to  receive  the  price  of  their  wives'  or 
daughters'  frailty,  especially  if  it  takes  the  form  of  liquor.  Dr. 
Simpson^  says:  "It  is  said  by  themselves  that  the  women  are 
very  continent  before  marriage,  as  well  as  faithful  afterward  to  their 
husbands ;  and  this  seems  to  a  certain  extent  true."  But  he  goes 
on  to  add  :  "In  their  conduct  toward  strangers  the  elderly  women 
frequently  exhibit  a  shameless  want  of  modesty,  and  the  men  an 
equally  shameless  indifference,  except  for  the  reward  of  their  part- 
ner's frailty."  It  seems  to  me  that  he  must  have  been  deceived 
by  the  natives  concerning  the  first  statement,  since  the  immorality 
of  these  people  among  themselves,  as  we  witnessed  it,  seems  too 
purely  animal  and  natural  to  be  of  recent  growth  or  the  result  of 
foreign  influence.  Moreover,  a  similar  state  of  affairs  has  been 
observed  among  Eskimo  elsewhere,  notably  at  Iglulik  at  the  time 
of  Parry's  visit.^ 

(b)     SOCIAL   LIFE   AND   CUSTOMS 

^  Personal  habits,  cleanliness,  etc.  —  Though  the  idea  of  cleanliness 
among  these  people  differs  coiisiderably_fronj,ja^r  ideas,  they  are 
as  a  rule  faj-  from  being  as  filthy  as  they  appear  at  first  sight. 
Considering  the  difficulty  of  obtaining  water,  even  for  purposes  of 
drinking,  in  the  winter  season,  the  iglu,  unless  dirty  work,  like  the 
dressing  of  skins,  etc.,  is  going  on,  is  kept  remarkably  clean.  The 
floor  and  walls  are  scrupulously  scraped  and  all  dirt  is  immediately 
wiped  up.  They  are  particularly  careful  not  to  bring  in  any  snow 
or  dirt  on  their  feet,  and  the  snow  and  hoar  frost  is  carefully  brushed 
off  from  the  outer  garment,  which  is  often  removed  before  entering 

1  Op.  cit,  p.  252,  2  -2nd  Voyage,"  p.  529. 


Chap.  VIII,  §  3.]  THE   POINT   BARROW   ESKIMO  251 

the  room  and  left  in  the  passage.  They  are  also  careful  not  to 
spit  on  the  floor  or  in  the  passage.^   .   .   . 

In  regard  to  personal  cleanliness,  there  is  considerable  difference 
between  individuals.  Some  people,  especially  the  poorer  women 
and  children,  are  not  only  careless  about  their  clothes,  going  about 
dressed  in  ragged,  greasy,  filthy  garments,  but  seldom  wash  even 
their  faces  and  hands,  much  less  their  whole  persons.  One  of  these 
women,  indeed,  was  described  by  her  grown-up  daughter  as  ''That 
woman  with  the  black  on  her  nose." 

On  the  other  hand  most  of  the  wealthier  people  appear  to  take 
priHp  in  being  neatly  clad,  and,  except  when  actually  engaged  in 
some  dirty  work,  always  have  their  faces  and  hands,  at  least,  scru- 
pulously clean  and  their  hair  neatly  combed.  Even  the  whole 
person  is  sometimes  washed  in  spite  of  the  scarcity  of  water. 
Many  are  glad  to  get  soap  (i^kakun)  and  use  it  freely.  Lieut. 
Ray  says  that  his  two  guides,  Mu'nialu  and  Apaidyao,  at  the  end 
of  a  day's  march  would  never  sit  down  to  supper  without  washing 
their  faces  and  hands  with  soap  and  water,  and  combing  their  hair, 
and  I  recollect  that  once,  when  I  went  over  to  the  village  to  get  a 
young  man  to  start  with  Lieut.  Ray  on  a  boat  journey,  he  would 
not  start  until  he  had  hunted  up  a  piece  of  soap  and  washed  his 
face  and  hands.  These  people,  of  course,  practice  the  usual 
Eskimo  habit  of  washing  themselves  with  freshly  passed  urine. 
This  custom  arises  not  only  from  the  scarcity  of  water  and  the 
difficulty  of  heating  it,  but  from  the  fact  that  the  ammonia  of  the 
urine  is  an  excellent  substitute  for  soap  in  removing  the  grease  with 
which  the  skin  necessarily  becomes  soiled.^  This  fact  is  well  known 
to  our  whalemen,  who  are  in  the  habit  of  saving  their  urine  to  wash 
the  oily  clothes  with.  The  same_Jiabit  is  practiced  by  the 
^'Chukchesl'  of  eastern  Siberia.^    All,  however,  get  more  or  less 

^  Compare  Nordenskidld's  account  of  the  comparative  cleanliness  of 
the  Chukch  dwellings  at  Pitlekaj :  '  *  On  the  other  hand  it  may  be  stated 
that  in  order  not  to  make  a  stay  in  the  confined  tent  chamber  too  uncom- 
fortable certain  rules  are  strictly  observed.  Thus,  for  instance,  it  is  not 
permitted  in  the  interior  of  the  tent  to  spit  on  the  floor,  but  this  must 
be  done  into  a  vessel  which,  in  case  of  necessity,  is  used  as  a  night  utensil. 
In  every  outer  tent  there  lies  a  specially  curved  reindeer  horn,  with  which 
snow  is  removed  from  the  clothes  ;  the  outer  pesk  is  usually  put  off  before 
one  goes  into  the  inner  tent,  and  the  shoes  are  carefully  freed  from  snow. 
The  carpet  of  walrus  skins  which  covers  the  floor  of  the  inner  tent  is 
accordingly  dry  and  clean.  Even  the  outer  tent  is  swept  clean  and  free 
from  loose  snow,  and  the  snow  is  daily  shoveled  away  from  the  tent  doors 
with  a  spade  of  whalebone.  Every  article,  both  in  the  outer  and  inner 
tent,  is  laid  in  its  proper  place  and  so  on."     ("Vega,"  vol.  2,  p.  104.) 

2  Compare  Dall,  "Alaska,"  p.  20. 

3  See  NordensUold,  "Vega,"  vol.  2,  p.  104. 


252  RETARDED  PEOPLES  [Part  II. 

shabby  and  dirty  in  the  summer,  when  they  are  living  in  tents  and 
boats.  All  are  more  or  less  infested  with  lice,  and  they  are  in  the 
habit  of  searching  each  other's  heads  for  these,  which  they  eat, 
after  the  fashion  of  so  many  other  savages.  They  have  also  an- 
other filthy  habit — that  of  eating  the  mucus  from  the  nostrils.  A 
similar  practice  was  noticed  in  Greenland  by  Egede,^  who  goes  on 
quaintly  to  say :  ''Thus  they  make  good  the  old  proverb,  'What 
drips  from  the  nose  falls  into  the  mouth,  that  nothing  may  be 
lost.'" 

Salutation.  —  We  had  no  opportunity  of  witnessing  any  meeting 
l^etween  these  people  and  strange  Eskimo,  so  that  it  is  impossible  to 
tell  whether  they  practice  any  particular  form  of  salutation  on 
such  occasions.  We  saw  nothing  of  the  kind  among  themselves. 
White  men  are  saluted  with  shouts  of  ''Nakuruk!"  (good),  and 
some  Eskimo  have  learned  to  shake  hands.  They  no  longer  prac- 
tice the  common  Eskimo  salutation  of  rubbing  noses,  but  say  that 
they  once  did.  Sergt.  Middleton  Smith,  of  our  party,  informs 
me  that  he  once  saw  a  couple  of  natives  in  Capt.  Herendeen's 
trading  store  give  an  exhibition  of  the  way  this  salutation  was 
formerly  practiced. 

This  custom  was  perhaps  falling  into  disuse  as  early  as  1837, 
since  Thomas  Simpson,^  in  describing  his  reception  at  Point  Barrow, 
says  :  *' We  were  not,  however,  either  upon  this  or  any  other  occa- 
sion, favored  with  the  kooniks  or  nose-rubbing  salutations  that 
have  so  annoyed  other  travelers."  Mr.  Elson,  however,  expressly 
states  that  the  people,  probably  Utkiavwmmiun,  whom  he  met  at 
Refuge  Inlet  eleven  years  before,  rubbed  noses  and  cheeks  with 
him  ^  and  Maguire  ^  narrates  how  the  head  of  the  party  of  visitors 
from  Point  Hope  saluted  him.  He  says  :  ''He  fixed  his  forehead 
against  mine  and  used  it  as  a  fulcrum  to  rub  noses  several  times." 

Heajj^ng.  —  As  is  the  case  with  Eskimo  generally,  these  people 
rely  for  curing  disease  chiefly  upon  the  efforts  of  certain  persons 
who  have  the  power  of  exorcising  the  supematiiiaLbeings  by  whom 
the  disease  is  caused.  A  large  number  of  men,  and,  I  believe,  some 
women  were  supposed  to  have  this  power  and  exercise  it  in  cases  of 
sickness,  in  some  instances,  at  least,  upon  the  payment  of  a  fee. 
These  people  correspond  closely  to  the  angekut  of  the  Greenlanders 
and  Eastern  Eskimo,  and  the  so-called  "shamans"  of  southern 
Alaska,  but,  as  far  as  we  could  see,  do  not  possess  the  power  and 
influence  usually  elsewhere  ascribed  to  this  class. 

1  "Greenland,"  p.  127.  ^  "Beechy's  Voyage,"  p.  312. 

2  "Narrative,"  p.  155.  -*  "N.  W.  Passage,"  p.  385. 


Chap.  VIII,  §4.]  THE   POINT   BARROW   ESKIMO  253 

It  was  exceedingly  difficult  to  obtain  any  definite  information 
concerning  these  people,  and  we  only  discovered  casually  that  such 
and  such  a  person  was  a  *' doctor"  by  hearing  that  he  had  been 
employed  in  a  certain  case  of  sickness,  or  to  perform  some  cere- 
mony of  incantation.  We  did  not  even  succeed  in  learning  the 
name  of  this  class  of  people,  who,  in  talking  with  us,  would  call 
themselves  ''tukte,"  as  they  did  our  surgeon.  On  one  occasion 
some  of  the  party  happened  to  visit  the  house  of  a  sick  man  where 
one  of  these  "  doctors  "  was  at  work.  He  sat  facing  the  entrance  of 
the  house,  beating  his  drum  at  intervals,  and  making  a  babbling 
noise  with  his  lips,  followed  by  long  speeches  addressed  to  some- 
thing down  the  trapdoor,  bidding  it  ''go!"  We  were  given  to 
understand  that  these  speeches  were  addressed  to  a  tu^na^  or  su- 
pernatural being.^  Their  idea  only  of  direct  treatment  of  disease  is 
apparently  to  apply  a  counter-irritant  by  scarification  of  the  sur- 
face of  the  part  aft'ected. 


4.   GOVERNMENT  l^ 

In  the  family.  — I  can  hardly  do  better  than  quote  Dr.  Simpson's 
words,  already  referred  to  (op.  cit.  p.  252),  on  this  subject : 
''A  man  seems  to  have  unlimited  authority  in  his  own  hut.'* 
Nevertheless,  his  rule  seems  to  be  founded  on  respect  and  mutual 
agreement,  rather  than  on  despotic  authority.  The  wife  appears 
to  be  consulted,  as  already  stated,  on  all  important  occasions,  and, 
to  quote  Dr.  Simpson  again  {ibid.) :  ''Seniority  gives  precedence 
when  there  are  several  women  in  one  hut,  and  the  sway  of  the  elder 
in  the  direction  of  everything  connected  with  her  duties  seems 
never  disputed."  W^hen  more  than  one  family  inhabit  the  same 
house  the  head  of  each  family  appears  to  have  authority  over  his 
own  relatives,  while  the  relations  between  the  two  are  governed 
solely  by  mutual  agreement. 

In  the  village.  — These  people  have  ncLestablished  form  of  govern- 
ment  nor  any  chiefs  in  the  ordinary  sense  of  the  word,  but  appear 
to  be  ruled  by  a  strong  public  opinion,  combined  with  a  certain 
amount  of  respect  for  the  opinions  of  the  elder  people,  both  men 
and  w^omen,  and  by  a  large  number  of  traditional  observances  like 
those  concerning  the  whale  fishery,  the  deceased,  etc.,  already 
described.     In  the  ordinary  relations  of  life  a  person,  as  a  rule, 

^  Dr.  Simpson  says  {op.  cit.,  p.  275):  ''Diseases  are  also  considered 
to  be  turn'gaks." 


254  RETARDED   PEOPLES  [Part  II. 

avoids  doing  anything  to  his  neighbor  which  he  would  not  wish  to 
have  done  to  himself,  and  affairs  which  concern  the  community  as  a 
whole,  as  for  instance  their  relations  with  us  at  the  station,  are 
settled  by  a  general  and  apparently  informal  discussion,  when  the 
opinion  of  the  majority  carries  the  day.  The  majority  appears  to 
have  no  means,  short  of  individual  violence,  of  enforcing  obedience 
to  its  decisions,  but,  as  far  as  we  could  see,  the  matter  is  left  to  the 
good  sense  of  the  parties  concerned.  Respect  for  the  opinions  of 
elders  is  so  great  that  the  people  may  be  said  to  be  practically 
under  what  is  called  ^'simple  elder  rule."  ^  Public  opinion  has 
formulated  certain  rules  in  regard  to  some  kinds  of  property  and 
the  division  of  game,  which  are  remarkably  like  those  noticed 
among  Eskimo  elsewhere,  and  which  may  be  supposed  to  have 
grown  up  among  the  ancestors  of  the  Eskimo,  before  their 
separation. 

For  instance,  in  Greenland,^  '*  Anyone  picking  up  pieces  of  drift- 
wood or  goods  lost  at  sea  or  on  land  was  considered  the  rightful 
owner  of  them ;  and  to  make  good  his  possession  he  had  only  to 
carry  them  up  above  high-water  mark  and  put  stones  upon  them, 
no  matter  where  his  homestead  might  be."  Now,  at  Point  Barrow 
we  often  saw  the  natives  dragging  driftwood  up  to  the  high-water 
mark,  and  the  owner  seemed  perfectly  able  to  prove  his  claim. 
Lieut.  Ray  informs  me  that  he  has  seen  men  mark  such  sticks  of 
timber  by  cutting  them  with  their  adzes  and  that  sticks  so  marked 
were  respected  by  the  other  natives.  On  one  occasion,  when  he 
was  about  to  have  a  large  piece  of  drift-timber  dragged  up  to  the 
station,  a  woman  came  up  and  proved  that  the  timber  belonged  to 
her  by  pointing  out  the  freshly  cut  mark.  I  have  myself  seen  a 
native  claim  a  barrel  which  had  been  washed  ashore,  by  setting  it 
up  on  end. 

As  far  as  we  could  learn,  the  smaller  animals,  as  for  instance, 
birds,  the  smaller  seals,  reindeer,  etc.,  are  the  property  of  the 
hunter,  instead  of  being  divided  as  in  some  other  localities,  for 
example  at  Smith  Sound.^  The  larger  seals  and  walruses  appeared 
to  be  divided  among  the  boat's  crew,  the  owner  of  the  boat  appar- 
ently keeping  the  tusks  of  the  walrus  and  perhaps  the  skin.  A 
bear,  however,  both  flesh  and  skin,  is  equally  divided  among  all 

1  Compare,  among  other  instances,  Capt.  Holm's  observations  in  East 
Oreenland :  "  Som  Overhoved  i  Huset  [which  is  the  village]  fungerer  den 
seldeste  Mand,  naar  han  er  en  god  Fanger,"  etc.  (Geogr.  Tids.,  vol.  8,  p.  90) . 

^  Rink,  "Tales  and  Traditions,"  p.  28.  Compare  also  Crantz, 
vol.  1,  p.  181. 

3  Bessels,  "Naturalist,"  vol.  23,  p.  873. 


Chap.  VIII,  §  4.]  THE   POINT   BARROW   ESKIMO  255 

who  in  any  way  had  a  hand  in  the  kiUing.  We  learned  this  with 
certainty  from  having  to  purchase  the  skin  of  a  bear  killed  at  the 
village,  where  a  number  of  men  had  been  engaged  in  the  hunt. 
When  a  whale  is  taken,  as  I  have  already  said,  the  whalebone  is 
equally  divided  among  the  crews  of  all  the  boats  in  sight  at  the 
time  of  killing.  All  comers,  however,  have  a  right  to  all  the  flesh, 
blubber,  and  blackskin  that  they  can  cut  off.^ 

Dr.  Rink,  in  describing  the  social  order  of  the  ancient  Green- 
landers,^  says  :  "  Looking  at  what  has  been  said  regarding  the  rights 
of  property  and  the  division  of  the  people  into  certain  communi- 
ties, in  connection  with  the  division  of  property  into  the  classes 
just  given,  we  are  led  to  the  conclusion  that  the  right  of  any  individ- 
ual to  hold  more  than  a  certain  amount  of  property  was,  if  not 
regulated  by  law,  at  least  jealously  watched  by  the  rest  of  the  com- 
munity, and  that  virtually  the  surplus  of  any  individual  or  com- 
munity, fixed  by  the  arbitrary  rate  which  tradition  or  custom  had 
assigned,  was  made  over  to  those  who  had  less."  At  Point  Barrow, 
however,  the  idea  of  individual  ownership  appears  to  be  much  more 
strongly  developed.  As  far  as  we  could  learn,  there  is  no  limit  to 
the  amount  of  property  which  an  individual,  at  least  the  head  of  a 
family,  may  accumulate.  Even  though  the  whalebone  be,  as 
already  described,  divided  among  all  the  boats'  crews  ''in  at  the 
death,"  no  objection  is  made  to  one  man  buying  it  all  up,  if  he  has 
the  means,  for  his  own  private  use. 

This  has  given  rise  to  a  regular  wealthy  and  aristocratic  class, 
who,  however,  are  not  yet  sufficiently  ditterentiRtH  tVom  Ih*^ 
poorer  penplptnrpfngp  to  assnoiate  on  any  terms  but  those  of  social 
equality.  The  men  of  this  class  are  the  umialiks,  a  word  which 
appears  in  many  corrupted  forms  on  the  coast  of  Western  America 
and  is  often  supposed  to  mean  "chief."  Dr.  Simpson^  says: 
"The  chief  men  are  called  0-meliks  (wealthy),"  but  "wealthy"  is 
an  explanation  of  the  position  of  these  men,  and  not  a  translation 

1  Compare  Rink,  "Tales,"  etc.,  p.  29  :  "But  if  an  animal  of  the  largest 
size,  more  especially  a  whale,  was  captured,  it  was  considered  common 
property,  and  as  indiscriminately  belonging  to  every  one  who  might  come 
and  assist  in  flensing  it,  whatever  place  he  belonged  to  and  whether  he 
had  any  share  in  capturing  the  animal  or  not." —  ("Greenland.")  GiUer 
("Schwatka's  Search,"  p.  190)  says  that  on  the  northwest  shore  of  Hud- 
son Bay  all  who  arrive  while  a  walrus  is  being  cut  up  are  entitled  to  a 
share  of  it,  though  the  man  who  struck  it  has  the  first  choice  of  pieces. 
At  East  Cape,  Siberia,  the  Krause  Brothers  learned:  "Wird  namlich 
ein  Walfisch  gefangen,  so  hat  jeder  Ortsbewohner  das  Recht,  so  viel 
Fleisch  zu  nehmen,  als  er  abzuschneiden  vermag."  —  ("  Geographische 
Blatter,"  vol.  5,  pt.  2,  p.  120). 

2  ^' Tales,"  etc.,  p.  29.  '  Op.  cit,  p.  272. 


256  KETARDED   PEOPLES  [Part  II. 

of  the  title,  which,  as  we  obtained  it,  is  precisely  the  same  as  the 
Greenland  word  for  owner  of  a  boat,  umialik  (from  umia(A:),  and 
the  termination  lik  or  li-n.  This  is  one  of  the  few  cases  in  which 
the  final  k  is  sounded  at  Point  Barrow  as  in  Greenland). 

Dr.  Rink  has  already  observed  ^  that  the  word  used  by  Simpson 
"  no  doubt  must  be  the  same  as  the  Greenlandish  umialik,  signify- 
ing owner  of  a  boat,"  and  as  I  heard  the  title  more  than  once  care- 
fully pronounced  at  Point  Barrow  it  was  the  identical  word.  The 
umialiks,  as  Simpson  says,^  "  have  acquired  their  position  by  being 
more  thrifty  and  intelligent,  better  traders,  and  usually  better 
hunters,  as  well  as  physically  stronger  and  more  daring."  ^  They 
have  acquired  a  certain  amount  of  influence  and  respect  from  these 
reasons,  as  well  as  from  their  wealth,  which  enables  them  to 
purchase  the  services  of  others  to  man  their  boats,  but  appear  to 
have  absolutely  no  authority  outside  of  their  own  families.'* 
Petroff  ^  considers  them  as  a  sort  of  "middlemen  or  spokesmen," 
who  make  themselves  "prominent  by  superintending  all  inter- 
course and  traffic  with  visitors." 

This  sort  of  prominence,  however,  appears  to  have  been  conferred 
upon  them  by  the  traders,  who,  ignorant  of  the  very  democratic 
state  of  Eskimo  society,  naturally  look  for  "chiefs"  to  deal  with. 
They  pick  out  the  best  looking  and  best  dressed  man  in  the  village 
and  endeavor  to  win  his  favor  by  giving  him  presents,  receiving 
him  into  the  cabin,  and  conducting  all  their  dealings  with  the 
natives  through  him. 

1  **  Tales,"  etc.,  p.  25.  2  Op.  cit. 

3  Compare  what  the  Krause  Brothers  say  of  the  "chiefs"  on  the  Si- 
berian coast  ("Geographische  Blatter,"  vol.  5,  pt.  1,  p.  29) :  "Die  Auto- 
ritat  welche  die  obenerwahnten  Manner  augenscheinlich  ausuben,  ist 
wohl  auf  Rechnung  ihres  grosseren  Besitzes  zu  setzen.  Der  'Chief* 
is  jedes  Mai  der  reichste  Mann,  ein  'big  man.'" 

*  See,  also,  Dr.  Simpson,  op.  cit.,  p.  273. 

^  Report,  etc.,  p.  125. 


CHAPTER  IX 
THE   SERI   INDIANS       ^^ 
1.  INTRODUCTION 

Something  has  been  known  of  the  Seri  Indians  (Seris,  Ceris, 
Ceres,  Heris,  Tiburones)  since  the  time  of  Coronado,  yet  they 
remain  one  of  the  least-studied  tribes  of  North  America.  The  first 
systematic  investigation  of  the  tribe  was  made  in  the  course  of 
expeditions  by  the  Bureau  of  American  Ethnology  in  1894  and 
1895 ;  it  was  far  from  complete. 

The  Seri  Indians  are  a  distinctive  tribe  in  habits,  customs,  and 
language,  inhabiting  Tiburon  island  in  Gulf  of  C^Jifornia,  and  a 
limited  adjacent  area  on  the  mainland  of  Sonora  (Mexico). 
They  call  themselves  Kun-haak  or  Kmike :  their  common  appella- 
tion is  from  the  Opata,  and  may  be  translated  "  spry. "  Their 
habitat  is  arid  and  rugged,  consisting  chiefly  of  desert  sands  and 
naked  mountain  rocks,  with  permanent  fresh  water  in  only  two  or 
three  places ;  it  is  barred  from  settled  Sonora  by  a  nearly  impassa- 
ble desert.  Two  centuries  ago  the  population  of  the  tribe  was 
estimated  at  several  thousands,  but  it  has  been  gradually  reduced 
by  almost  constant  warfare  to  barely  three  hundred  and  fifty,  of 
whom  not  more  than  seventy-five  are  adult  males,  or  warriors. 

The  Seri  men  and  women  are  of  splendid  physique ;  they  have 
fine  chests,  with  slender  but  sinewy  limbs,  though  the  hands  and 
especially  the  feet  are  large ;  their  heads,  while  small  in  relation  to 
stature,  approach  the  average  in  size;  the  hair  is  luxuriant  and 
coarse,  ranging  from  typical  black  to  tawny  in  color,  and  is  worn 
long.  They  are  notably  vigorous  in  movement,  erect  in  carriage, 
and  remarkable  for  fleetness  and  endurance. 

The  Seri  subsist  chiefly  on  turtles,  fish,  mollusks,  water-fowl, 
and  other  food  of  the  sea ;  they  also  take  land  game,  and  consume 
cactus  fruits,  mesquite  beans,  and  a  few  other  vegetal  products  of 
their  sterile  domain.     Most  of  their  food  is  eaten  raw.     They 

1  [By  W  J  McGee.  Reprinted  from  the  17th  Annual  Report  (Part  I) 
of  the  Bureau  of  American  Ethnology  (The  Smithsonian  Institution)  by 
permission  of  the  Director.] 

257 


258  RETARDED   PEOPLES  [Part  II. 

neither  plant  nor  cultivate,  and  are  without  domestic  animals, 
save  dogs  which  are  largely  of  coyote  blood. 


2.  SOCIAL  ORGANIZATION    *" 

Among  the  Seri,  as  among  many  other__ahoriginal  tribes,  the 
social  relations  are  largely  esoteric ;  moreover,  in  this,  as  in  other 
savage  groups,  the  social  laws  are  not  codified,  nor  even  definitely 
formulated,  but  exist  mainly  as  mere  habits  of  action  arising  in 
instinct  and  sanctioned  by  usage ;  so  that  the  tribesmen  could  not 
define  the  law  even  if  they  would.  Accordingly  the  Seri  socialry  ^ 
is  to  be  ascertained  only  by  patient  observation  of  conduct  under 
varying  circumstances.  Unfortunately,  the  opportunities  for  such 
observation  have  been  too  meager  to  warrant  extended  descrip- 
tion, or  anything  more,  indeed,  than  brief  notice  of  salient  points. 

(a)    CLANS    AND   TOTEMS 

The  most  noticeable  social  fact  revealed  about  the  Seri  rancherias 
is  the  prominence  of  the  females,  especially  the  elderwomen,  in  the 
managem^ntjif_£xeryd§X-affairs.  The  matrons  erect  the  jacales 
without  help  from  men  or  boys ;  they  carry  the  meager  belongings 
of  the  family  and  dispose  them  about  the  habitation  in  conformity 
with  general  custom  and  immediate  convenience;  and  after  the 
household  is  prepared,  the  men  approach  and  range  themselves 
about,  apparently  in  a  definite  order,  the  matron's  eldest  brother 
coming  first,  the  younger  brothers  next,  and  finally  the  husband, 
who  squats  in,  or  outside  of,  the  open  end  of  the  bower.  Accord- 
ing to  Mash  em's  iterated  explanations,  which  were  corroborated 
by  several  elderwomen  (notably  the  clanmother  known  to  the 
Mexicans  as  Juana  Maria)  and  verified  by  observation  of  the 
family  movements,  the  house  and  its  contents  belong  exclusively 
to  the  matron,  though  her  brothers  are  entitled  to  places  within  it 
whenever  they  wish ;  while  the  husband  has  neither  title  nor  fixed 
place,  "because  he  belongs  to  another  house"  —  though,  as  a 
matter  of  fact,  he  is  frequently  at  or  in  the  hut  of  his  spouse,  where 
he  normally  occupies  the  outermost  place  in  the  group  and  acts 
as  a  sort  of  outer  guard  or  sentinel.  Conformably  to  their  pro- 
prietary position,  the  matrons  have  chief,  if  not  sole,  voice  in  ex- 
tending and  removing  the  rancheria ;   and  such  questions  as  that 

1  A  convenient  term  proposed  by  Patton. 


Chap.  IX,  §  2.]  THE   SERI   INDIANS  259 

of  the  placement  of  a  new  jacal  are  discussed  animatedly  among 
them  and  finally  decided  by  the  dictum  of  the  eldest  in  the  group. 
The  importance  of  the  function  thus  exercised  by  the  women  has 
long  been  noted  at  Costa  Rica  and  other  points  on  the  Seri  frontier, 
for  the  rancherias  are  located  and  the  initial  jacal  erected  commonly 
by  a  solitary  matron,  sometimes  by  two  or  three  aged  dames; 
around  this  nucleus  other  matrons  and  their  children  gather  in  the 
course  of  a  day  or  two ;  while  it  is  usually  three  or  four  days,  and 
sometimes  a  week,  before  the  brothers  and  husbands  skulk  singly 
or  in  small  bands  into  the  new  rancheria. 

Quite  similar  is  the  regimentation  of  the  family  groups  as  indi- 
cated by  the  correlative  privileges  and  duties  as  to  placement,  as 
well  as  the  reciprocal  rights  of  command  and  the  requirements  of 
obedience.  Ordinarily  (especially  when  the  men  are  not  about) 
the  elderwoman  of  the  jacal  exercises  nnlimiipd  privileges  as  t.Q 
placement  of  both  persons  and  property,  locating  the  ahst,  the 
bedding,  the  fire  (if  any),  and  other  possessions  at  will,  and  assign- 
ing positions  to  the  members  of  her  family,  the  nubile  girls  receiving 
especial  attention ;  she  is  also  the  arbiter  of  disputes,  the  distribu- 
tor of  food,  etc;  but  in  case  of  tumult,  especially  when  children 
from  other  jacales  are  present,  she  may  invoke  the  authority  of  the 
clanmother,  whose  powers  in  the  rancheria  are  analogous  to  those 
of  the  younger  matrons  in  their  own  jacales.  Even  when  the  men 
are  present  they  take  little  part  in  the  regulation  of  personal  con- 
duct, but  tacitly  accept  the  decision  of  matron  or  clanmother; 
yet  in  emergencies  any  of  the  w^omen  are  ready  to  appeal  for  aid  in 
the  execution  of  their  w^ill  to  a  brother  (preferably  the  elder  brother) 
of  the  family,  or,  if  need  be  great,  to  the  brothers  of  the  clanmother. 
So  far  as  was  observed,  and  so  far  as  could  be  ascertained  through 
informants,  these  appeals  are  always  for  executive  and  never  for 
legislative  or  judicative  cooperation;  but  various  general  facts 
indicate  that  in  times  of  stress  —  in  the  heat  of  the  chase,  in  the 
warpath-craze,  etc. — the  men  bestir  themselves  into  the  initiative, 
while  the  women  drop  into  an  inferior  legislative  place.  As  an 
illustration  of  the  ordination  in  somewhat  unusual  circumstances, 
it  may  be  noted  that  when  the  "Seri  belle"  (Candelaria)  refused  to 
pose  for  a  photograph  she  was  supported  by  the  clanmother 
(Juana  Maria)  until  the  latter  was  placated  by  presents ;  and  that 
when  the  belle  refused  to  obey  the  mother's  command  —  to  the 
vociferous  scandal  of  the  entire  group  —  Juana  Maria  appealed 
to  Senor  Encinas,  as  the  conqueror  of  the  tribe  and  hence  as  the 
virtual  head  of  both  rancho  and  rancheria.    And  when  a  younger 


260  RETARDED   PEOPLES  [Part  II. 

Seri  maiden  similarly  refused  to  pose,  and  in  like  manner  disobeyed 
her  mother  (again  to  the  general  disgust),  the  latter  appealed  to 
Mashem ;  when  he,  after  first  exacting  additional  presents  for  both 
girl  and  mother  and  a  double  amount  for  himself,  put  hands  on  the 
recalcitrant  demoiselle  and  forced  her  into  the  pose  required, 
despite  the  shrinking  and  tremulous  terror  perceptible  even  in  the 
picture. 

Commonly  the  regimentation  of  family,  clan,  and  larger  group 
appears  to  be  indicated  approximately  by  the  placement  assumed 
spontaneously  in  the  idle  lounging  of  peace  and  plenty.  A  typical 
placement  of  a  small  group  is  illustrated  (in  plate  xiv)  ?  Here  the 
family  are  assembled  outside  the  jacal,  but  in  the  relative  positions 
which  would  be  assumed  within.  The  matron  (a  Red  Pelican 
woman)  squats  in  easy  reach  of  her  few  and  squalid  possessions ; 
on  her  left,  i.e.,  in  the  group-background  and  place  of  honor,  sits 
the  elderwoman  of  the  rancheria  (a  Turtle) ;  then  comes  the  daugh- 
ter of  the  family,  followed  by  two  girl-child  guests  of  the  group, 
the  three  occupying  positions  pertaining  to  chiefs  or  elder  brothers 
or,  in  their  absence,  to  daughters;  opposite  the  matron  sits  a 
younger  brother,^  whose  wife  is  a  Turtle  woman  (daughter  of  the 
dame  in  the  place  of  honor)  and  matron  of  another  jacal.  A  few 
feet  behind  this  brother  (just  outside  the  limits  of  the  photograph 
reproduced,  though  shown  on  the  duplicate  negative)  squats  the 
husband,  with  his  side  to  the  group  and  face  toward  the  direction 
of  natural  approach ;  while  the  place  belonging  to  the  sons  of  the 
family  on  the  matron's  right  is  temporarily  occupied  by  a  White 
Pelican  girl,  together  with  a  dog,  notable  in  the  local  pack  for 
largely  imported  blood  and  correspondingly  docile  disposition.  The 
place  for  the  babe,  were  there  one  in  the  family,  would  be  on  the 
heap  of  odds  and  ends  behind  the  matron.  As  in  this  group  so  in 
most  others,  the  place  of  the  sons  is  vacant ;  for  the  boys  are  at 
once  the  most  restless  and  the  most  lawless  members  of  the  tribe 
—  indeed,  the  striplings  seem  often  to  ignore  the  maternal  in- 
junctions and  even  to  evade  the  rarely  uttered  avuncular  orders, 
so  that  their  movements  are  practically  free,  except  in  so  far  as 
they  are  themselves  regimented  or  graded  by  strength  and  fleetness 
and  success  in  hunting. 

The  raison  d'etre  of  the  proprietorship  and  regimentation  re- 

^  [Not  reproduced  here.] 

2  This  man  was  one  of  those  involved  in  the  Robinson  butchery  on 
Tiburon  island  a  few  months  before  the  picture  was  taken ;  and  he  was 
one  of  those  executed  or  transported  for  the  affair  during  the  interval 
between  the  1894  and  1895  expeditions. 


Chap.  IX,  §  2.]  THE   SERI   INDIANS  261 

fleeted  in  the  everyday  customs  is  satisfactorily  indicated  by  that 
totemic  feature  of  the  social  organization  revealed  in  the  face- 
painting  described  in  earlier  paragraphs  (pp.  164-169) ;  ^  these 
symbols  evidently  represent  an  exclusively  mafpvna]  nrgranizfltinn 
into  clans  consecrated  to  zoic  tut  claries.  The  tutelaries,  or  totems, 
together  with  the  clan. names  and  all  personal  designations  con- 
nected with  the  totems,  are  highly  esoteric,  and  were  not  ascer- 
tained save  in  the  few  cases  mentioned  above.^ 

It  should  be  observed  that  the  indentification  of  kindred  by  the 
alien  observer  is  difficult  and  somewhat  uncertain,  since  the  rela- 
tionships recognized  in  Seri  socialry  are  not  equivalent  to  those 
customary  among  Caucasians.  It  was  found  especially  difficult 
to  identify  the  husband  of  the  jacal,  partly  because  he  is  commonly 
incongruously  younger  (and  hence  relatively  smaller)  than  the 
mistress,  and  partly  because  of  the  undignified  position  of  outer 
guard  into  which  he  is  forced  by  the  tribal  etiquette.  Moreover, 
his  connection  with  the  house  is  veiled  by  the  absence  of  authority 
over  both  children  and  domestic  affairs,  though  he  exercises  such 
authority  freely  (within  the  customary  limits)  in  the  jacales  of  his 
female  relatives.  There  is,  indeed,  some  question  as  to  the  clear 
recognition  of  paternity;  certainly  the  females  have  no  term  for 
"my  father,"  i.e.,  the  term  is  the  same  as  that  for  "my  mother," 
em,  though  the  males  distinguish  the  maternal  ancestor  by  a 
suffixed  syllable  (e-  "my  father";  e-ta  or  it-tah-  "my  mother"), 
which  seems  to  be  a  magnificative  or  an  intensificative  element. 
It  is  noteworthy  that  the  kinship  terminology  is  strikingly 
meager;  also  that  while  the  records  suggest  various  significant 
points,  the  material  is  hardly  rich  enough  to  warrant  complete 
synthesis  of  the  consanguineal  system. 

LJVhile  the  burden  of  the  more  permanent  property  pertains  to  the 
women,  there  is  a  decided  differentiation  of  labor  with  a  concomi- 
tant vesting  of  certain  property  in  the  warriors^  the  distinctively 
masculine  chattels  comprising  arrows,  quivers,  bows,  turtle-har- 
poons, etcZj  There  are  indications  that  the  balsas,  too,  are  regarded 
as  mascuHne  property.  The  impermanent  possessions  —  water, 
food,  etc.  —  seem  to  be  the  common  property  of  men,  women,  and 
children,  except  in  so  far  as  the  right  is  regulated  by  regimentation ; 

1  [Referring  to  the  pages  of  the  original  report,  but  not  reproduced  here.] 

2  The  chief  object  of  the  1895  expedition  was  to  pursue  the  inquiries 
concerning  social  organization,  totems,  etc. ;  but,  as  mentioned  elsewhere, 
this  object  was  defeated  by  the  troublous  history  of  the  tribe  during  the 
earlier  part  of  1895,  and  the  consequent  revival  and  intensification  of 
their  animosity  toward  aliens. 


262  RETARDED   PEOPLES  [Part  II. 

for  the  privileges  of  eating  and  drinking  are  enjoyed  in  the  order 
of  seniority.  In  the  reckoning  of  seniority,  the  chief  (who  is  com- 
monly such  in  virtue  of  his  position  as  nominal  elder  brother  of  a 
prolific  dame)  ranks  first,  and  is  followed  by  other  warriors  in  an 
order  affected  in  an  undetermined  way  by  conjugal  relations  as  well 
as  by  their  prowess  or  sagacity  (the  equivalents  of  age  in  primitive 
philosophy)  down  to  an  undetermined  point  —  apparently  fixed 
by  puberty ;  then  comes  the  clanmother,  followed  by  her  daughters 
in  the  order  of  nominal  age,  which  is  a  ected  by  the  status  of 
spouses  and  the  number  of  living  offspring;  finally  come  the 
children,  practically  in  the  order  of  their  strength  (which  also  is 
deemed  an  equivalent  of  age),  though  the  girls  —  especially  those 
approaching  nubility  —  receive  some  advantage  through  the  con- 
nivance of  the  matrons.  "  To  a  considerable  extent  in  the  matter 
of  sustentation,  and  to  a  dominant  degree  in  the  matter  of  appar- 
eling, the  distribution  of  values  is  affected  by  a  highly  significant 
(though  by  no  means  peculiar)  humanitarian  notion  of  inherent 
individual  rights  —  i.e.,  every  member  of  the  family  or  clan  is 
entitled  to  necessary  food  and  raiment,  and  it  is  the  duty  of  every 
other  person  to  see  that  the  need  is  supplied.  The  stress  of  this 
duty  is  graded  partly  by  proximity  (so  that,  other  things  equal,  it 
begins  with  the  nearest  person),  but  chiefly  by  standing  and 
responsibility  in  the  group  (which  again  are  reckoned  as  equiv- 
alents of  age),  whereby  it  becomes  the  business  of  the  first  at  the 
feast  to  see  that  enough  is  left  to  supply  all  below  him ;  and  this 
duty  passes  down  the  fine  in  such  wise  as  to  protect  the  interests  of 
the  helpless  infant,  and  even  of  the  tribal  good-for-naught  or 
hanger-on,  who  may  gather  crumbs  and  lick  bones  within  limits 
fixed  by  the  tribal  consensus.  Beyond  these  Hmits  lies  outlawry ; 
and  this  status  arises  and  passes  into  the  tribal  recognition  in  vari- 
ous ways  :  Kolusio  was  outlawed  for  consociating  with  aliens,  and 
Mashem  narrowly  missed  the  same  fate  at  several  stages  of  his 
career;  the  would-be  grooms  who  fail  in  their  moral  tests  are 
ostracized  and  at  least  semi-outlawed,  and  range  about  like  rogue 
elephants,  approved  targets  for  any  arrow,  until  they  perish 
through  the  multiplied  risks  of  solitude,  or  until  some  brilliant 
opportunity  for  display  of  prowess  or  generosity  brings  reinstate- 
ment ;  deformed  offspring  are  classed  as  outside  the  human  pale, 
even  when  the  deformity  is  defined  rather  by  occult  associations 
than  by  physical  features ;  abnormal  and  persistent  indolence,  too 
serious  for  scorn  and  ostracism  to  cure,  may  also  outpass  the  tribal 
toleration;    and,  as  indicated  by  Mashem's  guarded  expressions 


Chap.  IX,  §  2.]  THE   SERI   INDIANS  263 

and  slight  additional  data,  disease,  mental  aberration,  and  decrepi- 
tude are  allied  with  indolence  and  deemed  sufficient  reason  for 
excluding  the  persistently  helpless  from  the  tribal  solidarity,  and 
hence  from  recognized  humanity  —  and  the  fate  of  the  outlaw, 
even  if  nothing  more  severe  than  abandonment  in  the  desert,  is 
usually  sure  and  swift.  The  entire  customs  of  outlawry  among  the 
Seri  are  singularly  like  those  of  gregarious  animals,  including 
especially  kine  and  swine  in  domestication.  Now,  studied  equity 
in  the  distribution  of  necessaries  might  seem  to  be  allied  to  thrift ; 
but  it  is  noteworthy  that  this  is  not  so  among  the  Seri,  who  take 
thought  for  one  another  but  not  for  the  morrow,  who  seem  to  have 
no  conception  of  storage  (save  an  incipient  one  in  connection  with 
water  and  the  repulsive  notion  underlying  the  ''second  harvest")^ 
and  who  habitually  gorge  everything  in  sight  until  their  stomachs 
and  gullets  are  packed  —  and  then  waste  the  fragments. 

The  division  of  labor  which  affects  proprietary  interests  is  un- 
doubtedly affected  in  turn  by  the  militant  habit  of  the  tribe  and  by 
the  frequent  decimation  of  the  warriors.  In  general,  the  adult 
males  limit  their  work  to  fighting  and  fishing,  with  occasional 
excursions  into  the  hunting  field ;  though  by  far  the  greater  part  of 
their  time  is  spent  in  listless  lounging  or  heedless  slumber  under  the 
incidental  guard  of  roaming  youths  and  toiling  women.  The 
matrons  are  the  real  w^orkers  in  the  tribal  hive  ;  they  are  normally 
alert  and  active,  passing  from  one  simple  task  to  another,  gather- 
ing flotsam  food  along  the  beach  or  preparing  edibles  in  the  shadow 
of  the  jacal,  with  an  eye  ever  on  material  possessions  and  children ; 
they  frequently  join  in  hunting  excursions  of  considerable  extent ; 
they  are  the  chief  manufacturers  of  apparel,  utensils,  and  tools; 
and  the  scions  of  Castilian  caballeros  are  not  infrequently  staggered 
at  the  sight  of  half  a  dozen  Seri  women  ''milling"  a  band  of  horses, 
and  at  intervals  leaping  on  one  to  kill  it  with  their  hupfs.  The 
masculine  drones  are  the  more  petted  and  courted  by  reason  of  their 
fewness,  for  during  a  century  or  two,  at  least,  the  women  have  far 
outnumbered  their  consorts  —  a  disproportion  doubtless  tending  in 
some  respects  toward  the  disintegration  of  the  clan  system  and, 
reciprocally,  tow^ard  the  firmer  union  of  the  tribe. 

One  of  the  most  noteworthy  extensions  of  feminine  functions 
among  the  Seri  is  tow^ard  shamanism.  So  far  as  could  be  ascer- 
tained from  Mashem  and  the  associated  matrons  at  Costa  Rica, 
it  is  such  beldams  as  Juana  Maria  who  concoct  the  arrow  "poison," 
compound  both  necromantic  medicines  and  curative  simples,  cast 
spells  on  men  and  things,  and  even  fabricate  the  stone  arrow- 


264  KETARDED   PEOPLES  [Pakt  II. 

points  and  counterfeit  cartridges;  though  unhappily  the  data 
are  neither  so  full  nor  so  decisive  as  desirable.^ 

Conformably  with  their  prominence  in  proprietary  affairs,  the 
Seri  matrons  seem  to  exercise  formal  legislative  and  judicative 
functions;  for  not  only  do  they  hold  their  own  councils  for  the 
arrangement  of  the  domestic  business  of  the  rancherias,  but  they 
also  participate  prominently  in  the  tribal  councils  (as  explained 
by  Mashem),  and  play  important  roles  in  carrying  out  the  deci- 
sions of  such  councils  —  as  when  they  cooperate  with  war  parties 
as  decoys,  or  journey  across  their  bounding  desert  to  spy  out  the 
land  of  the  enemy. 

On  the  whole,  it  would  appear  that  the  clan  organization  of  the 
Seri  conforms  closely  with  that  characteristic  of  savagery  else- 
where, especially  among  the  American  aborigines.  The  social 
unit  is  the  maternal  clan,  organized  in  theory  and  faith  in  homage 
of  a  beast-god,  though  defined  practically  by  the  ocular  consan- 
guinity of  birth  from  a  common  line  of  mothers ;  yet  the  several 
units  are  pretty  definitely  wielded  into  a  tribal  aggregate  by  com- 
mon feelings,  identical  interests,  and  conjugal  ties.  The  most 
distinctive  features  brought  out  by  the  incomplete  investigation 
are  the  somewhat  exceptional  manifestation  of  property  right  in 
the  females,  the  singularly  strong  sense  of  maternal  relation,  and 
the  apparent  prominence  of  females  in  shamanistic  practices  as 
well  as  in  the  tribal  councils. 

3.  TRIBAL  organization/ 

(a)    CHIEFSHIP 

r  The  unformulated  tribal  laws  of  the  Seri  are  intimately  con- 
nected with  leadership,  which  is,  in  turn,  largely  a  reflection  of 
personal  characteristics;  so  that  the  tribal  organization  is  about 
as  variable  as  that  of  the  practically  autonomous  herds  of  cattle 
ranging  the  Sonoran  plains  adjacent  to  Serilandy  Indeed,  just 
as  the  stock-clans  enjoy  a  precedence  on  pasturage  and  at  water- 
holes,  determined  by  the  valor  and  strengthof  the  bulls  by  which 
they  are  led,  so  the  liePrxlanS'appear  to  be  graded^  by  the  prowess 
of  their  masculine^leaders,  combined  with  the  sortilegic  success 
of  the  leaders'  consorts ;  while,  just  as  the  leadership  of  the  cattle 
shifts  from  band  to  band  as  the  years  go  by,  according  to  the  fairly 
equal  hazard  of  natural  selection,  so  the  clan  dynasties  of  the  human 

^  The  agency  of  the  women  in  applying  the  arrow  "i' poison"  was  noted 
by  Hardy;   cj.  p.  258  [original  text]. 


Chap.  IX,  §3.]  THE  SERI   INDIANS  265 

group  rise,  flourish,  and  decline  in  an  endless  succession  shaped 
by  the  chances  of  birth  and  survival  under  a  capricious  environ- 
ment, by  the  fate  of  battles  internecine  and  external,  and  by 
various  other  factors.  The  instability  of  the  Seri  organization  is 
demonstrated  by  the  tribal  changes  recorded  in  history,  as  well 
as  by  the  vicissitudes  within  the  memory  of  Senor  Encinas  and 
others.  At  the  beginning  of  the  records  the  Upanguayma  were 
already  exiled  from  Seriland  proper  and  apparently  suffering 
from  raids  of  their  collinguals;  within  a  century  the  Guayma, 
also,  were  expatriated  and  nearly  annihilated ;  then,  in  the  early 
part  of  the  present  century,  the  Tepoka  were  extruded  and  (after 
a  series  of  wars  in  active  progress  in  Hardy's  time)  forced  far  up 
the  coast  to  one  of  the  poorest  habitats  ever  occupied  by  any 
folk.  So,  too,  throughout  the  Encinas  regime  the  internal  dissen- 
sions continued  whenever  the  clans  were  not  combined  against 
aliens ;  and  the  veteran  pioneer  has  seen  much  intratribal  strife, 
attended  by  the  rise  and  passing  of  many  chiefs,  both  acknowledged 
and  pretended,  and  often  exercising  chiefly  prerogatives  two  or 
three  at  a  time.  This  instability  growls  largely  out  of  the  fact 
that  the  essential  unit  is  the  clan,  and  that  the  tribe  is  nothing 
more  than  a  lax  aggregation ;  and  it  is  measurably  explained  by 
the  crude  customs  accompanying  the  choice  of  leaders. 

As  already  noted,  the  clan  organization  is  maternal,  and  the 
clanmother  is  the  central  figure  of  the  group ;  b"t  th^  fxecutive 
power  reside&_Jn  her  brothers  in  the  order  of  seniority  —  i.e., 
while  the  personal  arrangement  of  the  group  is  maternal,  rhe  ap- 
pellate administration  is  fraternal.  So  far  as  could  be  ascertained, 
the  form  of  government  is  clearly  discriminable  from  that  com- 
monly styled  avuncular ;  for,  in  the  first  place,  the  minor  adminis- 
tration accompanying  the  control  of  property  invests  the  elder- 
women  with  exceptional  legislative  and  judicative  powers,  while, 
in  the  second  place,  there  are  no  old  men  (by  reason  of  the  militant 
habit),  so  that  the  reverence  for  age  so  assiduously  cultivated  in 
primitive  life  extends  to  matrons  much  more  than  to  men.  Classed 
with  respect  to  major  administration,  therefore,  the  clan  may  be 
regarded  as  an  informal  adelphiarchy  (aSe\<^09  and  ^PX^^)  or  adel- 
phocracy  {aB€\(f)6^  and  /cparo^i).  It  has  none  of  the  elements  of 
the  patriarchy,  since  mgl^  l^i^ppn-p  ig  nr>t  rppnp;ni'7i^ri ,  and  can  not  be 
classed  as  a  matriarchy,  since  the  clanmother  is  administratively 
subordinate  to  her  brothers;  while  the  avuncular  functions  are 
apparently  inchoate  and  indirect,  i.e.,  exercised  only  through  or 
in  conjunction  with  the  clanmother.     In  short,  the  clan  is  ordi- 


266  RETARDED   PEOPLES  [Part  II. 

nated  or  regimented  in  ostensible  accordance  with  physical  power, 
though  the  real  faculty  is  confused  (after  the  fashion  of  primitive 
thinking  generally)  with  mystical  faculties,  imputed  largely  on 
magical  grounds  but  partly  on  grounds  of  age-reverence,  etc.  Now, 
when  two  or  more  clans  combine,  the  basis  on  which  the  common 
chiefship  is  determined  is  similar  to  that  determining  the  clan 
leadership ;  at  the  outset  three  factors  enter,  viz.  (1)  the  seniority 
of  the  clans  in  the  accepted  tribal  mythology,  (2)  the  prowess  of 
the  respective  clan  leaders  (always  weighed  in  conjunction  with 
the  shamanistic  potency  of  their  consorts),  and  (3)  the  numerical 
strength  of  the  respective  clans ;  but  practically,  so  far  as  can  be 
judged  from  all  available  information,  the  choice  really  reflects 
physical  force,  since  in  case  of  doubt  the  strongest  and  bravest 
man  becomes  the  eldest  by  virtue  of  his  strength  and  bravery, 
while  the  strongest  clan  finds  fair  ground  for  claiming  seniority 
in  the  very  fact  of  its  strength.  Naturally  disputes  arise  in  the 
adjustment  of  the  several  relations ;  and  in  the  actual  analysis  in 
council,  the  dispute  is  commonly  reduced  to  a  contest  between 
gods  and  men,  i.e.,  between  the  claims  for  mystical  and  magical 
potencies  on  the  one  hand  and  the  claims  of  brawn  and  bone  on 
the  other  hand,  so  that  strength  wins,  unless  omens  or  prodigies 
turn  the  scale  —  which  happens  often  enough  to  keep  the  subjec- 
tive and  the  objective  elements  in  fairly  equal  balance.  Sometimes 
the  contests  are  quickly  settled ;  again  they  last  for  months,  during 
which  the  tribe  struggles  under  its  weight  of  Cerberus  heads; 
and  repeatedly  the  disputes  have  ended  in  the  annihilation  of 
clans,  or  even  in  the  tribal  fissions  attested  by  the  recorded  and 
traditional  history  of  the  Serian  family. 

The  chiefship  once  determined,  the  leader  bends  all  energies 
toward  maintaining  the  position  by  which  he  is  dignified  and  his 
clan  exalted.  He  recognizes  his  responsibility  for  the  welfare  of 
the  tribe  —  not  only  for  success  in  battle  and  food-getting,  but 
for  stilling  storms  at  sea,  protecting  the  aguajes  from  the  drought- 
demons,  and  securing  all  other  benefits,  both  physical  and  magical ; 
he  must  be  aggressive  yet  cautious  on  the  warpath,  fleet  and  en- 
during in  retreat,  indomitable  in  the  chase,  bold  but  not  reckless 
on  the  balsa,  and  above  all  panoplied  and  favored  by  the  shadowy 
potencies  of  air  and  earth  and  waters ;  he  must  be  the  local  and 
lowly  Admirable  Crichton,  and  his  never-neglected  watchward 
must  be  noblesse  oblige.  His  practical  devices  for  maintaining 
prestige  are  many  and  diverse;  it  is  commonly  the  chief  who 
carries  the  symbolic  weapon,  the  counterfeit  cartridge,  the  imita- 


Chap.  IX,  §  3.]  THE   SERI   INDIANS  267 

tion  machete,  or  other  charm  against  alien  power;  it  is  usually 
he  who  wears  the  white  men's  hat  or  random  garment  in  lieu  of 
the  deer  or  lion  mask  of  earlier  days ;  and  during  recent  years  his 
most  prized  fetish,  and  one  which  practically  insures  the  support 
of  his  fellows,  is  a  written  certificate  of  his  chiefship  from  Senor 
Encinas,  or,  still  better,  from  El  Gobernador  at  Hermosillo.  Yet 
he  is  a  throneless  and  even  homeless  potentate,  sojourning,  like 
the  rest  of  his  fellows,  in  such  jacales  as  his  two  or  three  or  four 
wives  may  erect,  wandering  with  season  and  sisterly  whim, 
chased  often  by  rumors  of  invasion  or  by  fearsome  dreams,  and 
restrained  by  convention  even  from  chiding  his  own  children  in 
his  wives'  jacales  save  through  the  intercession  of  female  relatives. 
In  1894  the  head  chief  was  reported  to  be  on  Tiburon ;  the  puta- 
tive chief  of  the  rancheria  at  Costa  Rica  was  the  taciturn  giant 
known  as  El  Mudo;  while  Mashem  (or  Juan  Estorga)  was  the 
head  of  one  of  the  Pelican  clans. 

(b)    ADOPTION 

One  of  the  more  important  factors  in  demotic  development 
among  primitive  peoples  (probably  second  only  to  interclan  mar- 
riage in  extending  sympathy  and  unifying  law)  is  adoption ;  and 
special  efforts  were  made  to  obtain  data  relating  to  the  subject. 
Direct  inquiries  were  futile,  the  responses  indicating  that  the  entire 
subject  is  foreign  to  the  thought  of  the  tribe ;  but  three  sporadic 
and  measurably  incongruous  examples  of  quasi  adoption  are 
worthy  of  record. 

The  most  specific  case  is  that  of  Lieutenant  Hardy,  who  visited 
Isla  Tiburon  in  1826,  and  was  fortunate  in  gaining  the  confidence 
of  the  tribe  through  successful  medical  treatment  of  the  wife  of 
the  chief.  On  his  second  landing  he  was  greeted  with  many 
expressions  of  gratitude,  which  were  especially  exuberant  on  the 
part  of  the  daughter  of  the  family  (always  a  personage  in  Seri 
custom),  who  insisted  on  painting  his  face.     He  specifies : 

Not  wishing  to  deny  her  the  indulgence  of  this  innocent  frolic,  I  quietly 
suffered  her  to  proceed.  She  mixed  up  part  of  a  cake  of  blue  color,  which 
resembles  ultramarine  (and  of  which  I  have  a  specimen),  in  a  small  shell ; 
in  another,  a  white  color,  obtained  by  ground  talc,  and  in  a  third  was 
mixed  a  color  obtained  from  the  red  flint-stone  of  the  class  which  I  before 
stated  was  to  be  found  on  Seal  Island,  and  resembled  cinnabar.  With  the 
assistance  of  a  pointed  stick  the  tender  artist  formed  perpendicular  narrow 
stripes  down  my  cheeks  and  nose,  at  such  distances  apart  as  to  admit  of 
an  equally  narrow  white  line  between  them.  With  equal  delicacy  and 
skill  the  tops  and  bottoms  of  the  white  lines  were  finished  off  with  a  white 
spot.  If  the  cartilage  of  my  nose  at  the  nostrils  had  been  perforated  so 
as  to  admit  a  small,  round,  white  bone,  five  inches  in  length,  tapering  off 


268  RETARDED   PEOPLES  [Part  II. 

at  both  ends  and  rigged  something  like  a  cross-jack  yard,  I  might  have 
been  mistaken  for  a  native  of  the  island.  As  soon  as  the  operation  was 
finished,  the  whole  party  set  up  a  roar  of  merry  laughter,  and  called  me 
*'Hermano,  Capitan  Tiburon,"  being  the  very  limited  extent  of  their 
knowledge  of  Spanish.^ 

While  the  lieutenant  attached  no  significance  to  the  painting, 
the  procedure  would  seem  to  have  been  a  ceremonial  adoption, 
such  as  might,  for  example,  be  used  in  connection  with  a  con- 
federate clan.  The  description  of  the  painting  is  sufficiently  ex- 
plicit to  identify  the  totem  with  that  of  the  Turtle  clan,  repre- 
sented by  the  clanmother  and  the  daughter  of  the  clan  at  Costa 
Rica  in  1894  (plates  xviii  and  xxiv)  2;  but  it  is  noteworthy  that 
the  salutation  with  which  the  ceremony  terminated,  and  which 
may  be  rendered  "Captain-Brother  of  the  Sharks,"  would  seem 
to  identify  the  totem  with  the  shark  rather  than  the  turtle.^ 

The  second  case  of  adoption  (if  so  it  may  be'  styled)  was  that  of 
Senor  Encinas,  after  his  bloodiest  battle,  in  which  nearly  all  of 
the  Seri  warriors  were  left  on  the  field.  In  this  case  there  was  no 
ceremony,  or  at  least  none  remembered  by  the  beneficiary;  he 
was  merely  informed  by  a  delegation  of  aged  dames  that  thence- 
forth he  would  be  regarded  as  a  stronger  and  more  invulnerable 
chief  (shaman)  than  any  member  of  the  tribe,  and  hence  as  the 
tribal  leader. 

The  third  instance  is  still  less  definite,  though  it  seems  to  be 
trustworthy.  There  is  ^  widespread  tradition  throughout  Sonora 
that  in  the  course  of  a  brush  between  a  band  of  Papago  hunters 
and  a  marauding  bunch  of  Seri  warriors  in  the  mountains  south- 
east of  Cieneguilla  twenty-five  or  thirty  years  ago,  a  Papago  maiden 
was  captured  and  carried  off  to  Tiburon ;  and  that  for  some  years 
thereafter  —  i.e.,  until  the  Papago  had  taken  ample  blood-ven- 
geance —  the  intertribal  animosity  was  exceptionally  bitter.  No 
wholly  satisfactory  basis  for  the  traditions  could  be  found  among 
the  Papago,  though  some  of  the  silences  of  the  old  men  were  sug- 
gestive; nor  was  the  tradition  fully  credited  by  Seiior  Encinas, 
despite  its  deep  lodgment  in  the  minds  of  some  of  his  yeomanry. 
When  Mashem  was  interrogated  on  different  occasions,  he  merely 
shook  his  head  in  stolid  silence ;  but  when  the  device  was  adopted 

1  "Travels,"  p.  286.  ^  []sjot  reproduced  here.] 

'  This  identification  may  possibly  be  correct ;  the  collocation  of  the 
totem  with  the  turtle  was  shaped  through  unwilling  and  perhaps  mis- 
leading responses  made  by  Mashem  to  inquiries  in  1894  —  these  responses 
denoting  a  sea  monster  which  in  the  beginning  helped  the  Ancient  of  Peli- 
cans to  make  the  world  by  pushing  from  below,  and  which  is  now  very 
good  food  —  a  description  apparently  fitting  the  turtle  more  closely  than 
the  other  animal. 


Chap.  IX,  §3.]  THE  SERI   INDIANS  269 

of  inquiring  the  number  of  Papago  children  brought  into  the  tribe 
through  this  woman  he  responded  promptly  with  a  snort  of  scorn, 
and  followed  this  with  the  explanation  that  she  never  had  chil- 
dren, and  could  not  because  she  was  an  alien  slave.  The  explana- 
tion was  corroborated  by  clanmother  Juana  Maria  and  other 
matrons,  with  sundry- expressions  of  contemptuous  disapproval 
of  the  inquiry  and  scorn  of  the  very  idea  that  aliens  could  fructify 
within  the  tribe.  Later,  the  ice  being  broken,  Mashem  intimated 
that  the  woman  had  recently  died  of  old  age  and  its  consequences 
—  doubtless  as  an  outcast.  On  the  whole,  the  direct  testimony 
would  seem  to  substantiate  the  tradition,  and  to  supplement  it 
with  the  short  and  simple  annals  of  a  spouseless  and  childless  life 
(incredible  of  other  tribes,  but  consistent  with  the  customs  of  the 
Seri),  endured  for  many  years  and  ending  at  last  in  unpitied  death. 
Collectively  the  cases  seem  to  define  a  germ,  rather  than  a 
mature  custom,  of  adoption.  In  the  first  case  a  benefactor  (by 
means  regarded  as  magical)  was  formally  inducted  into  the  reign- 
ing family ;  in  the  second  case  the  conquering  hero  (through  what 
were  again  regarded  as  magical  means)  was  less  formally  recog- 
nized and  venerated,  even  worshiped,  as  an  all-powerful  shaman ; 
while  in  the  third  case  a  representative  of  the  doughtiest  alien 
tribe  was  enslaved,  probably  with  motives  akin  to  those  expressed 
in  the  carrying  of  chargeless  guns,  the  making  of  imitation  machetes, 
and  other  fetishistic  devices.  Except  in  the  first  instance  there 
is  no  indication  of  consistent  custom ;  but  since  the  entire  history 
of  the  tribe  clearly  contradicts  regulated  adoption  of  aliens  (and 
indeed  affords  no  other  example),  it  must  be  inferred  that  any  such 
custom  is  intratribal  rather  than  intertribal. 


(c)    MARRIAGE 

The  most  striking  and  significant  social  facts  discovered  among 
the  Seri  relate  to  marriage  customs. 

As  noted  repeatedly  elsewhere,  the  tribal  population  is  preponder- 
antly feminine,  so  that  polygyny  naturally  prevails ;  the  numbar 
of  wives  reaches  three  or  possibly  four,  averaging  about  Jiwo, 
though  the  younger  warriors  commonly  have  but  one,  and  there 
are  always  a  number  of  spouseless  (widowed)  dames  but  no  single 
men  of  marriageable,  age.  So  far  as  could  be  ascertained,  410 
special  formalities  attend  the  taking  of  supernumerary  wives, 
who  are  usually  widowed  sisters  of  the  first  spouse;  it  seems  to 
be  practically  a  family  affair,  governed  by  considerations  of  con- 


270  RETARDED   PEOPLES  [Part  II. 

venience  rather  than  established  regulations  —  an  irregularity 
combining  with  other  facts  to  suggest  that  polygyny  is  incidental, 
and  perhaps  of  comparatively  recent  origin. 

The  primary  mating  of  the  Seri  is  attended  by  observances  so 
elaborate  as  to  show  that  marriage  is  one  of  the  profoundest  sac- 
raments of  the  tribe,  penetrating  the  innermost  recesses  of  tribal 
thought,  and  interwoven  with  the  essential  fibers  of  tribal  exist- 
ence. Few  if  any  other  peoples  devote  such  anxious  care  to  their 
mating  as  do  the  Seri ;  ^  and  among  no  other  known  tribe  or  folk 
is  the  moral  aspect  of  conjugal  union  so  rigorously  guarded  by 
collective  action  and  individual  devotion. 

The  initial  movement  toward  formal  marriage  seems  to  be 
somewhat  indefinite  (or  perhaps,  rather,  spontaneous) ;  according 
to  Mashem  it  may  be  made  either  by  the  prospective  groom  or 
else  by  his  father,  though  not  directly  by  the  maiden  or  her  kins- 
women. In  any  event  the  prerequisites  for  the  union  are  pro- 
visionally determined  in  the  suitor's  family;  these  relate  to  the 
suitability  of  age,  the  propriety  of  the  clan  relation,  etc. ;  for  no 
stripling  may  seriously  contemplate  matrimony  until  he  has 
entered  manhood  (apparently  corresponding  with  the  warrior 
class),  nor  can  he  mate  in  his  own  totem,  though  all  other  clans 
of  the  tribe  are  apparently  open  to  him ;  while  the  maiden  must 
have  passed  (apparently  by  a  considerable  time)  her  puberty  feast. 
In  any  event,  too,  the  proposal  is  formally  conveyed  by  the  elder- 
woman  of  the  suitor's  family  to  the  maiden's  clanmother,  when 
it  is  duly  pondered,  first  by  this  dame  and  her  daughter  matrons ; 
and  later  (if  the  proposal  is  entertained)  it  is  deliberated  and  dis- 
cussed at  length  by  the  matrons_ix£-the^fcwek>clans  involved,  who 
commonly  hold  repeated  councils  for  the  purpose.  At  an  unde- 
termined stage  and  to  an  undetermined  degree  the  maiden  herself 
is  consulted ;  certainly  she  holds  the  powjerjif  vetQ^  ostensible  if 
not  acfual.  Pending  the  deliberations  the  maiden  receives  special 
consideration  and  enjoys  various  dignities ;  if  circumstances  favor," 
her  kinswomen  erect  u'^c^aTfor  her;  and  even  if  circumstances 
are  adverse,  she  is  outfitted  with  a  pelican  robe  of  six  or  eight 
pelts  and  other  matronly  requisites.  When  all  parties  concerned 
are  eventually  satisfied  a  probationary  marriage  is  arranged,  and 
the  groom  leaves  his  clan  and  attaches  himself  to  that  of  the  bride. 
Two  essential  conditions  —  one  of  material  character  and  the 

^  Perhaps  the  closest  parallel  in  this  respect  is  that  found  in  the  elab- 
orate marriage  regulations  prevailing  among  the  Australian  aborigines, 
as  described  by  Spencer  and  Gillen,  Walter  E.  Roth,  and  other  modern 
observers.     [See  Part  II,  Chapter  VII  of  this  volume.] 


Chap.  IX,  §3.]  THE   SERI  INDIANS  271 

other  moral  —  are  involved  in  this  probationary  union ;  in  the  first 
place,  the  groom  must  become  the  provider  for,  and  the  protector 
of,  the  entire  family  of  the  bride,  including  the  dependent  children 
and  such  cripples  and  invalids  as  may  be  tolerated  by  the  tribe  — 
i.e.,  he  must  display  and  exercise  skill  in  turtle-fishing,  strength 
in  the  chase,  subtlety  in  warfare,  and  all  other  physical  qualities 
of  competent  manhood.  This  relation,  with  the  attendaht  obli- 
gations, holds  for  a  year,  i.e.,  a  round  of  the  seasons.  During  the 
same  period  the  groom  shares  the  jacal  and  sleeping  robe  provided 
for  the  prospective  matron  by  her  kinswomen,  not  as  privileged 
spouse,  but  merely  as  a  protecting  companion;  and  throughout 
this  probationary  term  he  is  compelled  to  maintain  continence  — 
i.e.,  he  must  display  the  most  indubitable  proofs  of  moral  force. 
During  this  period  the  aWays  dignified  position  occupied  by  the 
daughter  of  the  family  culminates;  she  is  the  observed  of  all 
observers,  the  subject  of  gossip  among  matrons  and  warriors  alike, 
the  recipient  of  frequent  tokens  from  designing  sisters  with  an 
eye  to  shares  of  her  spouse's  spoils,  and  the  receiver  of  material 
supplies  measuring  the  competence  of  the  would-be  husband; 
through  his  energy  she  is  enabled  to  dispense  largess  with  lavish 
hand,  and  thus  to  dignify  her  clan  and  honor  her  spouse  in  the 
most  effective  way  known  to  primitive  life;  and  at  the  same 
time  she  enjoys  the  immeasurable  moral  stimulus  of  realizing  that 
she  is  the  arbiter  of  the  fate  of  a  man  who  becomes  warrior  or  out- 
cast at  her  bidding,  and  through  him  of  the  future  of  two  clans  — 
i.e.,  she  is  raised  to  a  responsibility  in  both  personal  and  tribal 
affairs  which,  albeit  temporary,  is  hardly  lower  than  that  of  the 
warrior-chief.  In  tribal  theory  the  moral  test  measures  the 
character  of  the  man ;  in  very  fact,  it  at  the  same  time  both  meas- 
ures and  makes  the  character  of  the  woman.  Among  other 
privileges  bestowed  on  the  bride  during  the  probationary  period 
are  those  of  receiving  the  most  intimate  attentions  from  the  clan- 
fellows  of  the  groom ;  and  these  are  noteworthy  as  suggestions  of 
a  vestigial  polyandry  or  adelphogamy.  At  the  close  of  the  year 
the  probation  ends  in  a  feast  provided  by  the  probationer,  who 
thereupon  enters  the  bride's  jacal  as  a  perpetual  guest  of  unlimited 
personal  privileges  (subject  to  tribal  custom) ;  while  the  bride 
passes  from  a  half-wanton  heyday  into  the  duller  routine  of 
matronly  existence. 

These  details  were  elicited  at  Costa  Rica  in  1894  through 
methodical  inquiries  made  in  connection  with  the  linguistic  col- 
lection.    This  collection  was  made  with  the  cooperation  of  Seiior 


272  KETARDED   PEOPLES  [Part  II. 

Alvemar-Leon  as  Spanish-English  interpreter,  together  with 
Mashem  and  (commonly)  the  clanmother  known  as  Juana  Maria. 
Usually  quite  a  group  of  Seri  matrons  with  two  or  three  warriors 
were  gathered  about,  and  to  these  Mashem  frequently  appealed 
for  advice  and  verification,  while  they  constantly  expressed  ap- 
proval or  disapproval  of  questions  and  replies,  as  gathered  through 
Mashem's  words  and  mien,  in  such  manner  as  to  afford  a  fair 
index  of  their  habitual  thought  —  e.g.,  when  the  Seri  vernacular 
for  "twins"  was  obtained  and  the  inquiry  was  extended  (by 
normal  association  of  ideas)  to  the  term  for  "triplets,"  Mashem 
collapsed  into  moody  silence  while  the  rest  of  the  group  decamped 
incontinently  with  horror-stricken  countenances  —  thereby  sug- 
gesting cautious  subsequent  inquiry,  and  the  discovery  that  triplets 
are  deemed  evil  monsters  and  their  production  a  capital  crime. 
It  was  in  one  of  the  earlier  conferences  that  the  first  intimations 
concerning  the  unusual  marital  customs  were  incidentally  brought 
out;  the  Caucasian  interpreter  and  bystanders  were  diverted  by 
the  naive  reference  to  the  moral  test,  but  their  expressions  were 
hastily  checked  lest  the  native  informants  might  be  startled  and 
rendered  secretive;  then,  during  two  later  conferences,  when 
Mashem  and  several  matrons  were  freely  participating  in  the  pro- 
ceedings, the  line  of  inquiry  was  so  turned  as  to  touch  on  various 
aspects  of  the  marriage  custom  and  bring  out  all  essential  features ; 
so  that  much  confidence  is  reposed  in  the  accuracy  of  the  details.^ 
The  confidence  in  the  verity  of  the  customs  was  such  as  not  to 
be  impaired  seriously  by  the  fact  that  no  records  of  coincident 
moral  tests  were  known  in  the  voluminous  literature  of  marriage 
and  its  concomitants;  nor  was  it  shaken  by  the  still  weightier 
fact  that  none  of  the  experienced  ethnologists  to  whom  inquiries 
were  addressed  during  ensuing  months  were  acquainted  with 
parallel  customs  —  indeed  the  only  shadow  of  corroboration  thus 
obtained  came  in  the  form  of  references  to  the  widespread  require- 
ment of  continence  in  war  and  ceremonies,  and  to  an  affectation 
of  self-restraint  for  a  moon  on  the  part  of  Zufii  grooms  noted  by 
Frank  Hamilton  Gushing.  Accordingly  the  facts  were  announced 
in  a  preliminary  paper,^  and  were  shown  to  stand  in  such  relation 

/It  may  be  observed  that  Kolusio,  when  visited  in  January,  1896, 
failed  to  corroborate  the  descriptions  of  Mashem  and  the  matrons;  but 
his  failure  occasioned  little  surprise  for  the  reason  that  he  has  not  lived 
with  his  tribe  since  early  boyhood,  and  is  equally  uninformed  (or  uncom- 
municative) concerning  the  myths,  ceremonies,  and  even  the  totems  of 
the  tribe. 

2  "The  Beginning  of  Marriage,"  "American  Anthropologist,"  vol.  ix, 
1896,  pp.  371-383. 


Chap.  IX,  §3.]  THE  SERI  INDIANS  273 

to  the  marital  customs  of  other  aboriginal  tribes  as  practically 
to  demonstrate  their  validity,  and  at  the  same  time  to  locate  the 
Seri  customs  on  a  lower  plane  of  cultural  development  than  any 
hitherto  definitely  recognized. 

Happily,  subsequent  researches  have  resulted  in  the  discovery 
of  records  corroborative  of  the  primitive  customs  observed  by  the 
Seri,  and  also  of  the  assignment  of  serial  place  to  these  customs. 
The  most  specific  record  is  that  of  John  Giles  (or  Gyles),  who  spent 
his  youth  as  a  captive  among  the  northeastern  Algonquian  Indians 
(probably  the  Maliseet  or  some  closely  related  Abnaki  tribe), 
from  August  2,  1689,  to  June  28,  1698.  Referring  to  the  marital 
customs  of  the  tribe,  he  observed : 

If  parents  have  a  daughter  marriageable,  they  seek  a  husband  for  her 
who  is  a  good  hunter.  If  she  has  been  educated  to  make  monoodah 
(Indian  bags),  birch  dishes,  to  lace  snowshoes,  make  Indian  shoes,  string 
wampum  belts,  sew  birch  canoes,  and  boil  the  kettle,  she  is  esteemed  a 
lady  of  fine  accomplishments.  If  the  man  sought  out  for  her  husband 
have  a  gun  and  ammunition,  a  canoe,  a  spear,  a  hatchet,  a  monoodah,  a 
crooked  knife,  looking-glass  and  paint,  a  pipe,  tobacco,  and  knot-bowl  to 
toss  a  kind  of  dice  in,  he  is  accounted  a  gentleman  of  a  plentiful  fortune. 
Whatever  the  new  married  man  procures  the  first  year  belongs  to  his 
wife's  parents.  If  the  young  pair  have  a  child  within  a  year  and  nine 
months,  they  are  thought  to  be  very  forward  and  libidinous  persons .^ 

This  record  is  of  peculiar  interest  in  that  it  definitely  specifies  a 
custom  corresponding  with  the  material  test  of  the  Seri,  and  un- 
mistakably implies  the  existence,  at  least  in  vestigial  or  senti- 
mental form,  of  a  custom  corresponding  with  the  moral  test  of 
Seriland;  and  it  is  particularly  noteworthy  as  coming  from  a 
remote  tribe  occupying  a  distant  part  of  the  continent. 

A  somewhat  less  specific  corroboration  is  found  in  Lawson's 
account  of  the  Carolina  tribes.     He  observes : 

When  any  young  Indian  has  a  mind  for  such  a  girl  to  his  wife,  he, 
or  some  one  for  him,  goes  to  the  young  woman's  parents,  if  living ;  if  not, 
to  her  nearest  relations,  where  they  make  offers  of  the  match  betwixt  the 
couple.  The  relations  reply,  they  will  consider  of  it ;  which  serves  for  a 
sufficient  answer,  till  there  be  a  second  meeting  about  the  marriage,  which 
is  generally  brought  into  debate  before  all  the  relations,  that  are  old  peo- 
ple, on  both  sides,  and  sometimes  the  king,  with  all  his  great  men,  give 
their  opinions  therein.  If  it  be  agreed  on,  and  the  young  woman  approve 
thereof,  for  these  savages  never  give  their  children  in  marriage  without 
their  own  consent,  the  man  pays  so  much  for  his  wife ;  and  the  handsomer 
she  is  the  greater  price  she  bears.  Now,  it  often  happens  that  the  man  has 
not  so  much  of  their  money  ready  as  he  is  to  pay  for  his  wife ;  but  if  they 
know  him  to  be  a  good  hunter,  and  that  he  can  raise  the  sum  agreed  for, 

1  '  Memoirs  |  of  |  Odd     Adventures,  I  Strange     Deliverances,    etc.  | 
in  the  |  Captivity  of  John  Giles,  Esq.,  |  Commander  of  the  Garrison  on 
Saint  George  river,  in  the  |  District  of  Maine.  |  Written  by  Himself.  I 
Originally    published  at    Boston,   1736.  |  Printed    for  William  Dodge.  | 
Cincinnati :  |  Spiller  &  Gates,  printers,  168  Vine  street.  |  1869."  —  P.  45. 


274  RETARDED  PEOPLES  [Part  II. 

in  some  few  moons,  or  any  little  time  they  agree,  she  shall  go  along  with 
him  as  betrothed,  but  he  is  not  to  have  any  knowledge  of  her  till  the  utmost 
payment  is  discharged;  all  which  is  punctually  observed.  Thus  they 
lie  together  under  one  covering  for  several  months,  and  the  woman  re- 
mains the  same  as  she  was  when  she  first  came  to  him.^ 

This  record  also  is  peculiarly  pertinent,  partly  in  that  it  prac- 
tically corroborates  the  Seri  testimony,  but  chiefly  in  that  it 
indicates  definite  transition  toward  a  higher  culture-plane  in 
which  the  primitive  material  test  is  at  least  partially  replaced  by 
a  commutation  in  goods  or  their  equivalents. 

On  reducing  the  marital  customs  of  the  Seri  to  conventional 
terms,  the  more  prominent  features  are  found  to  be  (1)  strict  clan 
exogamy  and  (2)  absolute  tribal  endogamy,  together  with  (3)  theo- 
retical or  constructive  monogamy,  coupled  with  (4)  vague  traces 
of  polyandry,  and  (5)  an  apparently  superficial  polygyny,  as  well 
as  (6)  total  absence  of  purchase  or  capture  of  either  spouse. 

On  reviewing  the  customs  in  the  light  of  their  influence  on  the 
everyday  life  of  the  tribe,  certain  features  stand  out  conspicuously  : 
(1)  Perhaps  the  most  striking  feature  is  the  collective  character 
of  the  function;  for  while  the  movement  originates  in  personal 
inclination  on  the  part  of  the  suitor  and  is  shaped  by  personal 
inclination  on  the  part  of  the  maiden,  all  manifestations  of  in- 
clination are  open  and  public  (at  least  to  the  elders  of  the  two 
clans  involved),  while  the  personal  sentiments  on  both  sides  are 
completely  subordinated  to  the  public  interests  of  clans  and  tribe 
as  weighed  and  decided  by^  the  matronly  lawgivers  and  adel- 
phiarchal  administratives.  vThus  neither  man  nor  maid  mates 
for  one's  self,  but  both  love  and  move  in  the  tribal  interests  and 
along  the  lines  laid  down  by  the  tribal  leader^  (2)  As  a  corollary 
or  a  complement  (according  to  the  viewpoint)  to  the  collectivity 
of  the  mating,  the  next  most  striking  feature  is  the  formal  or 
legal  aspect  of  the  union ;  for  the  entire  affair,  from  inception  to 
consummation,  is  rigorously  regulated  by  precedents  and  usages 
handed  down  from  an  immemorial  past.  Thus  the  roots  of  young 
affection  are  not  destroyed  but  rather  cultivated,  though  the 
burgeoning  vine  and  the  outreaching  tendrils  are  trained  to  a 
social  structure  shaped  in  ages  gone  and  kept  in  the  olden  form  by 
unbroken  tradition.  (3)  A  collateral  feature  of  the  customs  is 
the  necessary  reaction  of  the  requirements  on  individual  character 
of  both  groom  and  bride;    for  the  would-be  warrior-spouse  is 

1  "The  History  of  Carolina,"  etc.  by  John  Lawson  (1714),  reprint  of 
1860,  pp.  302-303.  Attention  was  called  to  this  passage  by  Mr.  James 
Mooney. 


Chap.  IX,  §3.]  THE   SERI   INDIANS  275 

compelled  to  display  high  qualities  of  physical  and  moral  man- 
hood on  pain  of  ostracism  and  outlawry,  so  that  his  passions  of 
ambition  and  affection  are  at  once  stimulated  to  the  highest 
degree,  while  the  maiden's  pride  of  blood  and  possession  and  her 
sense  of  regnant  responsibility  are  fostered  to  the  utmost.  The 
brief  preliminary  courtship  and  the  long  probationary  mating 
mark  an  era  of  intensification  in  two  lives  at  their  most  impres- 
sionable stage ;  and  if  there  be  aught  in  the  simple  yet  puissant 
law  of  conjugal  conation  —  that  law  whose  motive  underlies  the 
world's  song  and  story  and  all  the  pulsing  progress  of  mankind 
as  the  inspiration  of  most  men's  work  and  most  women's  hopes  — 
the  vital  intensity  of  this  era  passes  down  the  line  of  blood-descent 
to  the  betterment  of  later  generations.  (4)  Another  collateral 
feature  is  the  necessary  reaction  on  clan  and  tribe;  for  not  only 
does  the  individual  character-making  raise  the  average  physique 
and  morale  of  the  group,  but  the  carefully  studied  restraint  of 
excessive  individuality  serves  to  strengthen  still  further  the  tribal 
bonds  and  to  lift  still  higher  the  racial  bar  against  aliens.  The 
blackest  crime  in  the  Seri  calendar  is  the  toleration  of  alien  blood ; 
and  no  more  effective  device  could  be  found  for  keeping  alive  the 
race-sense  on  which  this  canon  depends  than  that  virtually  sac- 
ramental surveillance  of  sexual  intimacy  which  Seri  usage  requires.^ 
On  scanning  the  conventional  classifications  of  human  marriage 
in  the  light  of  the  Seri  customs,  it  becomes  clear  that  these  customs 
define  a  plane  not  hitherto  recognized  observationally.  For  con- 
venience, this  plane  and  the  mode  of  marriage  depning  it  may, 
in  special  allusion  to  the  correlative  race-sense,  be  styled  ethnog- 
amj/li^and  the  more  systematic  characters  of  this  mode  and  plane 
of  marriage  may  be  outlined  briefly : 

1  The  remarkable  race-sense  of'  the  tribe,  with  the  conjugal  conation 
in  which  it  seems  to  root,  are  discussed  ante,  [not  reprinted].  There  is 
nothing  to  indicate,  and  much  to  contraindicate,  that  the  Seri  are  con- 
sciously engaged  in  stirpiculture ;  yet  their  social  and  fiducial  devices 
would  seem  to  be  no  less  effective  in  developing  race-sense,  with  its  con- 
comitants, than  were  those  of  prehistoric  men  in  developing  the  physical 
attributes  of  animal  associates,  such  as  the  wool-bearing  of  the  sheep, 
the  egg-laying  of  the  fowl,  and  the  milk-giving  of  the  cow;  or  the  still 
more  striking  mental  attributes,  such  as  the  servility  of  the  horse,  the 
fidelity  of  the  dog,  and  the  domesticity  of  the  cat.  All  these  attributes 
are  artificial,  though  not  consciously  so  to  their  producers,  hardly  even  to 
modern  users  ;  they  are  by-products  of  long-continued  breeding  and  exer- 
cises, commonly  directed  toward  collateral  ends  (as  when  the  horse  was 
bre(i  for  speed,  the  dog  for  hunting,  and  the  fowl  and  cat  for  beauty) ; 
and,  similarly,  the  Seri  race-sense  would  seem  to  be  largely  a  by-product 
of  faith-shaped  customs  designed  primarily  to  propitiate  or  invoke  mys- 
tical potencies  —  yet  the  collateral  effect  is  not  diminished  because  over- 
looked in  the  primary  motive. 


276  RETARDED   PEOPLES  [Part  II. 

1.  The  most  conspicuous  character  of  ethnogamic  union,-  as 
manifested  in  the  type  tribe,  is  its  absolute  confinement  to  the 
consanguineal  group.  The  breach  of  this  Hmitation  is  hardly 
conceivaEIeTothe  minds  of  the  group,  since  aliens  are  not  classed 
as  human,  nor  even  dignified  as  animals  of  the  kinds  deified  in 
their  lowly  faith,  but  contemned  as  unclean  and  loathsome  mon- 
sters ;  yet  the  infraction  has  a  sort  of  theoretical  place  at  the  head 
of  their  calendar  as  an  utterly  intolerable  crime.  In  respect  to 
this  character,  ethnogamy  corresponds  fairly  with  the  endogamy 
of  McLennan,  Spencer,  and  others,  i.e.,  with  the  tribal  endogamy 
of  Powell. 

2.  A  hardly  less  conspicuous  character  of  ethnogamic  union  is 
the  formality.,>_Q]Liegality,  accompanying  and  reflecting  the  col- 
lective nature  of  the  function.  In  this  respect  ethnogamy  is  the 
direct  antithesis  of  that  hypothetical  promiscuity  postulated  by 
Morgan  and  adopted  by  Spencer,  Lubbock,  Tylor,  and  others; 
and  the  customs  of  the  type  tribe  go  farther,  perhaps,  than  any 
other  example  in  verifying  the  alternative  assumption  of  Wester- 
marck  that  the  course  of  conjugal  development  is  rather  from 
monogamy  toward  promiscuity  than  in  the  reverse  direction. 

3.  A  noteworthy  character  of  ethnogamic  union  is  the  absence 
of  capture  of  either  bride  or  groom.  Any  semblance  of  capture 
would  indeed  be  wholly  incongruous  with  the  rigid  confinement  of 
union  to  members  of  the  group;  it  would  also  be  incongruous 
with  the  exceeding  formality  and  necessary  amicability  of  both 
preliminary  and  concomitant  arrangements. 

4.  Another  noteworthy  character  is  the  total  ab^nce  of  pur.-, 
^chase  on  either  part.  Although  a  material  condition  attends  the 
union,  it  is  essentially  a  test  of  character,  and  is  applied  in  such 
wise  as  to  dignify  the  feminine  element  rather  than  to  degrade  it 
like  barbaric  wife-purchase;  while  any  semblance  of  purchase 
would  be  incongruous  with  the  economic  condition  of  a  tribe 
practically  destitute  of  accumulated  property  or  even  of  thrift- 
.sense. 

5.  A  significant  character  of  ethnogamic  union,  as  exemplified 
in  the  type  tribe,  is  the  ceremonial  or  constructive  monogamy-. 
While  there  are  obscure  (and  presumptively  vestigial)  tT§££S=^( 
polyandry  or  adelphogamy,  and  while  an  informal  polygyny  is 
practiced  by  the  chieis  and  older  warriors,  the  formal  matings  are 
foetween  one  man  and  one  woman,  and  appear  to  be  permanent. 

Now,  on  comparing  these  characters  with  those  revealed  in 
the  marital  customs  of  other  tribes  and  peoples,  they  are  found 


IChap.  IX,  §3.]  THE   SERI   INDIANS  277 

to  betoken  a  notably  provincial  and  primitive  culture-stage.  Per- 
haps the  nearest  American  approach  to  the  Seri  customs  is  found 
among  certain  California  aborigines,  notably  the  Yurok  and 
Patawat  tribes,  who  recognize  the  institution  of  "half-marriage"  ;  ^ 
but  here  the  material  test  of  Seriland  is  replaced  by  purchase, 
while  no  trace  of  the  moral  test  is  found  (even  as  among  the 
Carolina  Indians,  according  to  Lawson) ;  moreover,  while  these 
tribes  discourage  alien  connections,  they  are  not  absolutely 
eschewed  and  reprobated  as  among  the  Seri.  Other  notably 
primitive  customs,  like  those  so  fully  described  by  Spencer  and 
Gillen,  have  been  found  among  the  Australian  aborigines ;  ^  but 
even  here  a  part  only  of  the  marriages  are  regulated  by  amicable 
convention,  while  others  are  effected  by  (1)  charm,  (2)  capture, 
and  (3)  elopement ;  and  these  collateral  devices  imply  intertribal 
relations  of  a  kind  incongruous  with  the  ethnogamic  habit  and 
utterly  repugnant  to  the  ethnogamic  instinct.  In  both  cases, 
accordingly,  the  marital  customs  clearly  imply  (and  actually  ac- 
company) a  much  more  highly  differentiated  socialry  and  economy 
than  that  of  the  Seri.  The  same  is  true  of  that  vestigial  custom 
of  the  Scottish  clans  known  as  handfasting,  which  is,  moreover, 
a  direct  antithesis  of  the  Seri  custom  in  that  it  carries  a  warrant 
for,  rather  than  an  abridgment  of,  conjugal  prerogatives ;  and 
the  same  might  be  said  also  of  various  South  American,  African, 
and  southeastern  Asian  customs. 

Certain  representative  North  Ame^'^Rn  ^ng^Q^ng  have  already 
been  Seriated  in  ^^^^^^tJ^n  wH^  tb^  SffH  customs,  and  their  rela- 
tions are  of  sufficient  significance  to  warrant  recapitulation. 
The  series  begins  with  the  maternally  organized  and  practically 
property  less  Seri.  Next  stand  the  Zuiii,  with  an  essentially  mater- 
nal organization,  the  vestigial  moral  test  of  the  groom  noted  by 
Cushing,  and  a  concomitant  material  test  verging  on  purchase; 
so,  too,  monogamy  persists,  while  the  function  remains  largely 
collective,  and  is  regulated  by  the  elders,  though  the  bride  enjoys 
special  prerogatives;  and  the  fierce  tribal  endogamy  is  relaxed, 
though  clan  exogamy  is  enforced.  Measurably  similar  to  those 
of  the  Zuni  are  the  marital  customs  of  the  peaceful  Tarahumari 
tribe  of  northern  Mexico  and  the  once  warlike  Seneca  tribe  of 
northeastern  United  States,  although  among  both  of  these  more  cos- 
mopolitan peoples  the  regulations  are  less  closely  similar  to  the  Seri 

1  "Contributions  to  North  American  Ethnology,"  vol.  iii,  1877  ("Tribes 
of  California,"  by  Stephen  Powers),  pp.  56,  98. 

2^' The  Native  Tribes  of  Central  Australia,"  1899,  pp.  554-560  and 
elsewhere. 


278  RETARDED   PEOPLES  [Pabt  II. 

customs  than  are  those  of  the  Pueblo  tribe  named.  Next  in  order 
of  marital  differentiation  stand  the  Kwakiutl  and  Salish  tribes  of 
British  Columbia,  in  which  the  social  organization  has  practically 
passed  into  the  paternal  stage ;  here  the  laws  of  monogamy,  clan 
exogamy,  and  tribal  endogamy  are  materially  relaxed,  the  moral 
test  is  lost  among  the  Kwakiutl  and  reduced  to  a  curious  vestige 
among  the  Salish,  while  the  material  test  is  commuted  into  the 
making  of  expensive  presents.  Still  more  remote  from  the  initial 
stage  is  the  marriage  of  the  paternally  organized  Omaha,  among 
whom  tribal  endogamy  is  prevalent  but  not  absolute,  while  polygyny 
is  customary ;  among  whom  the  moral  test  seems  wholly  obsolete, 
while  the  material  test  is  completely  replaced  by  purchase  (or  at 
least  by  the  interchange  of  expensive  presents) ;  and  among  whom, 
concordantly,  the  feminine  privileges  are  few  and  the  females 
are  practically  degraded  to  the  rank  of  property  of  male  kindred 
or  spouses.  CThese  several  customs  fall  into  a  natural  order  or 
series  definitely  coordinated  with  the  esthetic,  the  industrial  or 
economic,  and  the  general  institutional  or  social  conditions  of  the 
respective  tribes ;  and  it  is  noteworthy  that  they  mark  successive 
stages  in  that  passage  from  the  mechanical  to  the  spontaneous 
which  characterizes  demotic  actiyit^^ 

In  brief,  ethnogamy,  as  exemplified  by  the  type  tribe,  accom- 
panies that  strictly  maternal  organization  which  marks  the  lowest 
known  stage  of  social  development;  it  accompanies  also  a  rudi- 
mentary esthetic  condition  in  which  decorative  symbols  are  re- 
stricted to  the  expression  of  maternal  relation;  it  accompanies, 
in  like  manner,  an  inchoate  economic  condition  characterized  by 
absence  of  property  and  thrift-sense;  while  its  most  essential 
concomitant  is  extratribal  antipathy  too  bitter  to  permit  tolera- 
tion of  alien  blood,  or  even  of  alien  presence  save  under  the  con- 
straint of  superior  force. 


1  Cf.  "The  Beginning  of  Marriage,"  op.  cit.  The  conclusion  from  the 
details  discussed  in  this  paper  is  as  follows  :  "Summarizing  the  tendencies 
revealed  in  this  history,  it  would  appear  that  the  course  of  evolution  [of 
conjugal  institutions]  has  been  from  the  simple  to  the  complex,  from  the 
definite  to  the  indefinite,  from  the  general  to  the  special,  from  the  fixed 
to  the  variable,  from  the  involuntary  to  the  voluntary,  from  the  mechan- 
ical to  the  spontaneous,  from  the  provincial  to  the  cosmopolitan,  or,  in 
brief,  from  the  chiefly  biotic  to  the  wholly  demotic"  (p.  283). 


Chapter  X 

WYANDOT  GOVERNMENT:   A  SHORT  STUDY  OF  TRIBAL 

SOCIETY  1 

In  the  social  organization  of  the  Wyandpts  four  groups  are 
recognized  —  the  family,  thp  gens,  the  phratry.  and  the  tribe. 


A.  THE  FAMILY 

The  family  as  the  term  is  here  used,  is  nearly  synonymous  with 
the  housfihold.  It  is  composed  of  the  persons  who  occupy  one 
lodge,  or,  in  their  permanent  wigwams,  one  section  of  a  communal 
dwelling.  These  permanent  dwellings  are  constructed  in  an  oblong 
form,  of  poles  interwoyen  with  bark.  The  fire  is  placed  in  line 
along  the  cejiter^  and  is  usually  built  fgr  two  families,  one  occupy- 
ing the  place  on  each  side  of  the  fire. 

The  head  of  the  family  i^  a  womfln. 

B.  THE   GENS  "^ 

The  gens  is  an  organized  bod_y  of  consanguineal  kindred  in  the 
female  line.  *'The  woman  carries  the  gens,"  is  the  formulated 
statement  by  which  a  Wyandot  expresses  the  idea  that  descent 
is  in  the  female  line.  Each  gens,  has  the  name  of  some  animal, 
the  ancient  of  such  animal  being  its  tutelar  god.  Up  to  the  time 
that  the  tribe  left  Ohio,  eleyen  gentes  were  recognized,  as  follows : 

Deer,  Bear,  Highland  Turtle  (striped),  Highland  Turtle  (black). 
Mud  Turtle,  Smooth  Large  Turtle,  Hawk,  Beayer,  Wolf,  Sea 
Snake,  and  Porcupine. 

In  speaking  of  an  indiyidual  he  is  said  to  be  a  wolf,  a  bear,  or 
a  deer,  as  the  case  may  be,  meaning  thereby  that  he  belongs  to 

^  [By  J.  W.  Powell.  Reprinted  from  the  16th  Annual  Report  of  the 
Bureau  of  American  Ethnology  (The  Smithsonian  Institution)  by  per- 
mission of  the  Director, 

Major  Powell  was  born  March  24,  1834 ;  died  Sept.  23,  1902.  He  was 
Director  of  the  Bureau  of  Ethnology,  1879-1902.  He  was  a  distinguished 
authority,  and  contributed  valuable  works,  on  ethnology,  linguistics,  and 
geology.] 

279 


280 


RETARDED   PEOPLES 


[Part  II. 


that  gens ;  but  in  speaking  of  the  body  of  people  comprising  a 
gens,  they  are  said  to  be  relatives  of  the  wolf,  the  bear,  or  the  deer, 
as  the  case  may  be. 

There  is  a  body  of  names  belonging  to  each  gens,  so  that  each 
person's  name  indicates  the  gens  to  which  he  belongs.  These 
names  are  derived  from  the  characteristics,  habits,  attitudes,  or 
mythologic  stories  connected  with  the  tutelar  god. 

The  following  schedule  presents  the  name  of  a  man  and  a 
woman  in  each  gens,  as  illustrating  this  statement : 


Man  of  Deer  gens 
Woman  of  Deer  gens 
Man  of  Bear  gens 
Woman  of  Bear  gens 
Man  of  Striped   Turtle 

gens 
Woman       of       Striped 

Turtle  gens 
Man  of  Mud  Turtle  gens 
Woman  of  Mud  Turtle 

gens 
Man  of   Smooth   Large 

Turtle  gens 
Woman  of  Smooth  Large 

Turtle  gens 
Man  of  Wolf  gens 

Woman  of  Wolf  gens 
Man  of  Snake  gens 


Wun-ddt 
De-wa-ti-re 
A-ya-jin-ta 
A-tu-e-tes 
Tsa-ma^  -da-ka-e 
Ta-ha-so°-ta-ra-ta-se 

Tso-we-yun-kyu 

Sha-yan-tsu-wat' 
Ya"  -dac-u-ras 

Hu»»'-du-cu-ta 

Tsu-ca-e'^ 

Ha^r6-u°-y^ 

Ya°  -di-no 
Hu-ta-hu-sa 


Woman  of  Snake  gens         Di-je-rons 
Man  of  Porcupine  gens       Ha°  -dti-tu" 
Woman  of  Porcupine  gens  Ke-ya-runs-kwa 


English 
Lean  Deer. 
Spotted  Fawn. 
Long  Claws. 
Grunting  for  her  Young. 
Going  Around  the  Lake. 

Gone  from  the  Water. 

Hard  Skull. 
Finding  Sand  Beach. 

Throwing  Sand. 

Slow  Walker. 

One  who  goes  about  in 
the  Dark ;  a  Prowler. 

Always  Hungry. 

Sitting  in  curled  Posi- 
tion. 

One  who  Ripples  the 
Water. 

The  one  who  puts  up 
Quills. 

Good-Sighted. 


C.  THE   PHRATRY 

There  are  (four  phratries  in  the  tribfe,  the  three  gentes  Bear, 
Deer,  and  Striped  Turtle  constituting  the  first ;  the  Highland 
Turtle,  Black  Turtle,  and  Smooth  Large  Turtle  the  second ;  the 
Hawk,  Beaver,  and  Wolf  the  third ;  and  the  Sea  Snake  and  Por- 
cupine the  fourth. 

This  unit  in  their  organization  has  a  mythologic  basis,  and  is 
chiefly  used  for  religious  purposes,  in  the  preparation  of  medicines, 
and  in  festivals  and  games. 

The  eleven  gentes,  as  four  phratries,  constitute  the  tribe. 

Each  gens  is  a  body  of  consanguineal  kindred  in  the  female  line, 
and  each  gens  is  allied  to  other  gentes  by  consanguineal  kinship 
through  the  male  line,  and  by  affinity  through  marriage. 


Chap.  X.]  WYANDOT   GOVERNMENT  281 

To  be  a  member  of  the  tribe  it  is  necessary  to  be  a  member  of  a 
gens ;  to  be  a  member  of  a  gens  it  is  necessary  to  belong  to  some 
family ;  and  to  belong  to  a  family  a  person  must  have  been  born 
in  the  family  so  that  his  kinship  is  recognized,  or  he  must  be 
adopted  into  a  family  and  become  a  son,  brother,  or  some  definite 
relative;  and  this  artificial  relationship  gives  him  the  same 
standing  as  actual  relationship  in  the  family,  in  the  gens,  in  the 
phratry,  and  in  the  tribe. 

Thus  a  tribe  is  a  body  of  kindred. 
/Of  the  four  groups  thus  described,  the  gens,  the  phratry,  and 
the  tribe  constitute  the  series  of  organic  unitsy  the  family,  or 
household  as  here  described,  is  not  a  unit  of  the  gens  or  phratry, 
as  two  gentes  are  represented  in  each  —  the  father  must  belong 
to  one  gens,  and  the  mother  and  her  children  to  another. 


1.  GOVERNMENT 

Society  is  maintained  by  the  establishment  of  government,  for 
rights  must  be  recognized  and  duties  performed. 

In  this  tribe  there  is  found  a  complete^  differentiation  of  the 
militarxJlQm  the  civil  government. 

2.  CIVIL  GOVERNMENT 

The  civil  government  inheres  in  a  system  of  councils  and 
chif^fs. 

In  each  gens  there  is  a  council,  composed  of  four  women,  called 
Yu-ivai-yu-wd-na.  These  four  women  councillors  select  a  chief  of 
the  gens  from  its  male  members  —  that  is,  from  their  brothers 
and  sons.     This  gentile  chief  is  the  head  of  the  gentile  council. 

The  council  of  the  tribe  is  composed  of  the  aggregated  gentile 
councils.  The  tribal  council,  therefore,  is  composed  one-fifth  of 
men  and  four-fifths  of  women. 

The  sachem  of  the  tribe,  or  tribal  chief,  is  chosen  by  the  chiefs 
of  the  gentes. 

There  is  sometimes  a  grand  council  of  the  gens,  composed  of 
the  councillors  of  the  gens  proper  and  all  the  heads  of  households 
and  leading  men  —  brothers  and  sons. 

There  is  also  sometimes  a  grand  council  of  the  tribe,  composed 
of  the  council  of  the  tribe  proper  and  the  heads  of  households  of 
the  tribe,  and  all  the  leading  men  of  the  tribe. 

These  grand  councils  are  convened  for  special  purposes. 


282  RETARDED   PEOPLES  [Part  II. 

3.   METHODS  OF  CHOOSING  AND  INSTALLING  COUNCILLORS 

AND  CHIEFS 

The  four  wQmea>councillors  of  the  gens  are  chosen  by  thedieads 
of  households,  themselves  being  wonaen.  There  is  no  formal  elec- 
tion, but  frequent  discussion  is  had  over  the  matter  from  time  to 
time,  in  which  a  sentiment  grows  up  within  the  gens  and  through- 
out the  tribe  that,  in  the  event  of  the  death  of  any  councillor,  a 
certain  person  will  take  her  place. 

In  this  manner  there  is  usually  one,  two,  or  more  potential 
councillors  in  each  gens  who  are  expected  to  attend  all  the  meet- 
ings of  the  council,  though  they  take  no  part  in  the  deliberations 
and  have  no  vote. 

When  a  woman  is  installed  as  councillor  a  feast. is  prepared  by 
the  gens  to  which  she  belongs,  and  to  this  feast  all  the  members 
of  the  tribe  are  invited.  The  woman  is  painted  and  dressed  in 
her  best  attire  and  the  sachem  of  the  tribe  places  upon  her  head 
the  gentile  chaplet  of  feathers,  and  announces  in  a  formal  manner 
to  the  assembled  guests  that  the  woman  has  been  chosen  a  coun- 
cillor. The  ceremony  is  followed  by  feasting  and  dancing,  often 
continued  late  into  the  night. 

The  gentile j^hief  is  chosen  by  the  counciLwomen  after  consul- 
tation with  the  other  women  and  men  of  the  gens.  Often  the 
gentile  chief  is  a  potential  chief  through  a  period  of  probation. 
During  this  time  he  attends  the  meetings  of  the  council,  but 
takes  no  part  in  the  deliberations,  and  has  no  vote. 

At  his  installation,  the  council  women  invest  him  with  an 
elaborately  ornamented  tunic,  place  upon  his  head  a  chaplet  of 
feathers,  and  paint  the  gentile  totem  on  his  face.  The  sachem  of 
the  tribe  then  announces  to  the  people  that  the  man  has  been 
made  chief  of  the  gens,  and  admitted  to  the  council.  This  is  also 
followed  by  a  festival. 

The  sachem  of  the  tribe  is  selected  by  the  men  belonging  to  the 
council  of  the  tribe.  Formerly  the  sachemship  inhered  in  the  Bear 
gens,  but  at  present  he  is  chosen  from  the  Deer  gens,  from  the 
fact,  as  the  Wyandots  say,  that  death  has  carried  away  all  the 
wise  men  of  the  Bear  gens. 

The  chief  of  the  Wolf  gens  is  the  herald  and  the  sheriff  of  the 
tribe.  He  superintends  the  erection  of  the  council-house  and  has 
the  care  of  it.  He  calls  the  council  together  in  a  formal  manner 
when  directed  by  the  sachem.  He  announces  to  the  tribe  all  the 
decisions  of  the  council,  and  executes  the  directions  of  the  council 
and  of  the  sachem.  . 


Chap.  X.]  WYANDOT   GOVERNMENT  283 

Gentile  councils  are  held  frequently  from  day  to  day  and  from 
week  to  week,  and  are  called  by  the  chief  whenever  deemed  neces- 
sary. When  matters  before  the  council  are  considered  of  great 
importance,  a  grand  council  of  the  gens  may  be  called. 

The  tribaJLcfiuncil  is  held  regiilarly  on  the  night  of  the  full 
moon  of  each  lunation  and  at  such  other  times  as  the  sachem  may 
determine ;  but  extra  councils  are  usually  called  by  the  sachem  at 
the  request  of  a  number  of  councillors. 

Meetings  of  the  gentile  councils  are  very  informal,  but  the 
meetings  of  the  tribal  councils  are  conducted  with  due  ceremony. 
When  all  the  persons  are  assembled,  the  chief  of  the  Wolf  gens 
calls  them  to  order,  fills  and  lights  a  pipe,  sends  one  puff  of  smoke 
to  the  heavens  and  another  to  the  earth.  The  pipe  is  then  handed 
to  the  sachem,  who  fills  his  mouth  with  smoke,  and,  turning  from 
left  to  right  with  the  sun,  slowly  puffs  it  out  over  the  heads  of  the 
councillors,  who  are  sitting  in  a  circle.  He  then  hands  the  pipe 
to  the  man  on  his  left,  and  it  is  smoked  in  turn  by  each  person 
until  it  has  been  passed  around  the  circle.  The  sachem  then 
explains  the  object  for  which  the  council  is  called.  Each  person 
in  the  way  and  manner  he  chooses  tells  what  he  thinks  should 
be  done  in  the  case.  If  a  majority  of  the  council  is  agreed  as  to 
action,  the  sachem  does  not  speak,  but  may  simply  announce 
the  decision.  But  in  some  cases  there  may  be  protracted  debate, 
which  is  carried  on  with  great  deliberation.  In  case  of  a  tie,  the 
sachem  is  expected  to  speak. 

It  is  considered  dishonorable  for  any  man  to  reverse  his  decision 
after  having  spoken. 

Such  are  the  organic  elements  of  the  Wyandot  government. 


(th 


4.  FUNCTIONS  OF  CIVIL  GOVERNMENT 


^t  is  the  function  of  government  to  preserve  rights  and  enforce 
the  performance  of  dutiesA  Rights  and  duties  are  co-relative. 
Rights  imply  duties,  and  duties  imply  right.  The  right  inhering 
in  the  party  of  the  first  part  imposes  a  duty  on  the  party  of  the 
second  part.  The  right  and  its  co-relative  duty  are  inseparable 
parts  of  a  relation  that  must  be  maintained  by  government ;  and 
the  relations  which  governments  are  established  to  maintain  may 
be  treated  under  the  general  head  of  rights. 

In  Wyandot  government  these  rights  may  be  classed  as  follows : 

First  —  Rights  of  marriage. 

Second  —  Rights  to  names. 


284  RETARDED  PEOPLES  [Part  II. 

Third  —  Rights  to  personal  adornments. 

Fourth  —  Rights  of  order  in  encampments  and  migrations. 

Fifth  —  Rights  of  property. 

Sixth  —  Rights  of  person. 

Seventh  —  Rights  of  community. 

Eighth  —  Rights  of  rehgion. 

To  maintain  rights,  rules  of  conduct  are  established,  not  by 
formal  enactment,  but  by  regulated  usage.  Such  custom-made 
laws  may  be  called  regulations. 

5.  MARRIAGE  REGULATIONS 

Marriage  between  members  of  the  same  gens  is  forbidden,  but 
consanguineal_jjiarriages  between  persons  of  different  gentes  are 
permitted.  For  example,  a  man  may  not  marry  his  mother's 
sister's3aughter,  as  she  belongs  to  the  same  gens  with  himself; 
but  he  can  marry  his  father's  sister's  daughter,  because  she  be- 
longs to  a  different  gens. 

^Husbands  retain  all  their  rights  and  privileges  in  their  own  gentes, 
though  they  live  with  the  gentes  of  their  wives.^  Children,  irre- 
spective of  sex,  belong  to  the  gens  of  the  mother.  Men  and 
women  must  marry  within  the  tribe.  A  woman  taken  to  wife 
from  without  the  tribe  must  first  be  adopted  into  some  family 
of  a  gens  other  than  that  to  which  the  man  belongs.  That  a 
woman  may  take  for  a  husband  a  man  without  the  tribe  he  must 
also  be  adopted  into  the  family  of  some  gens  other  than  that  of 
the  woman.  What  has  been  called  by  some  ethnologists  en- 
dogamy and  exogamy  are  correlative  parts  of  one  regulation,  and 
the  Wyandots,  like  all  other  tribes  of  which  we  have  any  knowl- 
edge in  North  America,  are  both  endogamous  and  exogamous. 

(Polygamy  is  permitted,  but  the  wives  must  belong  to  different 
gentes.^  The  first  wife  remains  the  head  of  the  household.  Poly- 
andry IS  prohibited. 

A  man  seeking  a  wife  consults  her  mother,  sometimes  direct, 
and  sometimes  through  his  own  mother.  The  mother  of  the  girl 
advises  with  the  women  councillors  to  obtain  their  consent,  and 
the  young  people  usually  submit  quietly  to  their  decision.  Some- 
times the  w^omen  councillors  consult  with  the  men. 

When  a  girl  is  betrothed,  the  man  makes  such  presents  to  the 
mother  as  he  can.  It  is  customary  to  consummate  the  marriage 
before  the  end  of  the  moon  in  which  the  betrothal  is  made.  Bride- 
groom and  bride  make  promises  of  faithfulness  to  the  parents  and 


Chap.  X.]  WYANDOT   GOVERNMENT  285 

women  councillors  of  both  parties.  It  is  customary  to  give  a  mar- 
riage feast,  in  which  the  gentes  of  both  parties  take  part.  For  a 
short  time  at  least,  bride  and  groom  hve  with  the  bride's  mother, 
or  rather  in  the  original  household  of  the  bride. 

The  time  when  they  will  set  up  housekeeping  for  themselves  is 
usually  arranged  before  marriage. 

In  the  event  of  the  death  of  the  mother,  the  children  belong  to 
her  sister  or  to  her  nearest  female  kin,  the  matter  being  settled 
by  the  council  women  of  the  gens.  As  the  children  belong  to  the 
mother,  on  the  death  of  the  father  the  mother  and  children  are 
cared  for  by  her  nearest  male  relative  until  subsequent  marriage. 

6.  NAME  REGULATIONS 

It  has  been  previously  explained  that  there  is  a  body  of  names> 
the  exclusive  property  of  each  gens.  Once  a  year,  at  the  green 
corn  festival,  the  council  women  of  the  gens  select  the  names  for 
the  children  born  during  the  previous  year,  and  the  chief  of  the 
gens  proclaims  these  names  at  the  festival.  No  person  ma.y^ 
change,  his  name,  but  every  pers^^j  ^^^  ^t-  wnmnn^  V>y  VinnnrghU 
or  dishonorable  conduct,  or  by  remHrkable  circumptance,  mny  win-- 
a  second  name  commemorative  of  deed  or  circumstance,  which  is 
a  kind  of  title. 

7.   REGULATIONS   OF  PERSONAL  ADORNMENT^ 

Each  clan  has  a  distinctive  method  of  painting  the,  face,  a  dis- 
tinctive chaplet  to  be  worn  by  the  gentile  chief  and  council  women 
when  they  are  inaugurated,  and  subsequently  at  festival  occa- 
sions, and  distinctive  ornaments  for  all  its  members,  to  be  used  at 
festivals  and  religious  ceremonies. 

8.  REGULATIONS    OF    ORDER    IN    ENCAMPMENT    AND    MI- 
GRATIONS 

The  camp  of  the  tribe  is  in  an  np^n  nimlp  qj-  hnrgp-shnp,  and  the 
gentes  camp  in  following  order,  beginning  on  the  left  and  going 
around  to  the  right : 

Deer,  Bear,  Highland  Turtle  (striped).  Highland  Turtle  (black). 
Mud  Turtle,  Smooth  Large  Turtle,  Hawk,  Beaver,  Wolf,  Sea 
Snake,  Porcupine. 

The  order  in  which  the  households  camp  in  the  gentile  group  is 


286  RETARDED   PEOPLES  [Part  II. 

regulated  by  the  gentile  councillors  and  adjusted  from  time  to 
time  in  such  a  manner  that  the  oldest  family  is  placed  on  the  left, 
and  the  youngest  on  the  right.  In  migrations  and  expeditions 
the  order  of  travel  follows  the  analogy  of  encampment. 

9.  PROPERTY  RIGHTS      ^ 

Within  the  area  claimed  by  the  tribe  each  gens  occupies  a  smaller 
i  tract  for  the  purpose  of  cultivation.  The  right  of  the  gens  to 
cultivate  a  particulaiLlract  is  a  matter  settled  in  the  council  of 
the  tribe,  and  the  gens  may  abandon  one  tract  for  another  only 
with  the  consent  of  the  tribe.  The  women  councillors  partitiotL 
the  gentile  land  amongthe  househQlders,  and  the  household  tracts 
are  distinctly  mafEeSby  them.  The  ground  is  re-partitioned 
once  in  two  years.  The  heads  of  households  are  responsible  for 
the  cultivation  of  the  tract,  and  should  this  duty  be  neglected 
the  council  of  the  gens  calls  the  responsible  parties  to  account. 

Cultivation  is  communal ;  that  is,  all  of  the  able-bodied  women 
of  the  gens  take  part  in  the  cultivation  of  each  household  tract  in 
the  following  manner : 

The  head  of  the  household  sends  her  brother  or  son  into  the 
forest  or  to  the  stream  to  bring  in  game  or  fish  for  a  feast ;  then 
the  able-bodied  women  of  the  gens  are  invited  to  assist  in  the 
cultivation  of  the  land,  and  when  this  work  is  done  a  feast  is 
given. 

The  wigwam  or  lodge  and  all  articles  of  the  household  belong 
to  the  woman  —  the  head  of  the  household  —  and  at  her  death 
are  inherited  by  her  eldest  daughter,  or  nearest  of  female  kin. 
The  matter  is  settled  by  the  council  women.  If  the  husband  die 
his  property  is  inherited  by  his  brother  or  his  sister's  son,  except 
such  portion  as  may  be  buried  with  him.  His  property  consists 
of  his  clothing,  hunting  and  fishing  implements,  and  such  articles 
as  are  used  personally  by  himself. 

Usually  a  small  canoe  is  the  individual  property  of  the  man. 
Large  canoes  are  made  by  the  male  members  of  the  gentes,  and 
are  the  property  of  the  gentes. 

.    10.  RIGHTS  OF  PERSON 

Each  individual  has  a  rightto_|reedom  of  person  andjecurity 
from  personal  and  bodily  injury,  unless  adjudged  guilty  of  crime 
by  proper  authority. 


Chap.  X.]  WYANDOT   GOVERNMENT  287 

11.  COMMUNITY  RIGHTS 

Each  gens  has  the  right  to  the  sep/ices  of  allr  its  women  in  the 
cultivation-of-the^soil.  Each  gens  has  the  right  to  the  service  of 
all  its  male  members  in  avenging  wrongs,  and  the  tribe  has  the 
right  to  the  service  of  all  its  male  members  in  time  of  war. 

12.  RIGHTS  OF  RELIGION 

Each  pbrairy  has  the  right  to  certain  religious  ceremonies  and 
the  preparation  of  certain^medicines. 

Each  gens  has  the  exclusive  right  to  worship  its  tutelar  god, 
and  each  individual  has  the  exclusive  right  to  the  possession  and 
use  of  a  particular  amulet. 

13.  CRIMES 

The  vi^JRtK^ns  of  right  nro  mmes  Some  of  the  crimes  recog- 
nized by  the  Wyandots  are  as  follows : 

1.   Adultery.  *«  4.   Murder.     *" 

f  2.   Theft.       *-  5.   Treason. 

r  3.   Maiming.t-  6.   Witchcraft. 

A  maiden  guilty  of  fornication  may  be  punished  by  her  mother 
or  female  guardian,  but  if  the  crime  is  flagrant  and  repeated,  so 
as  to  become  a  matter  of  general  gossip,  and  the  mother  fails  to 
correct  it,  the  matter  may  be  taken  up  by  the  council  women  of 
the  gens. 

A  woman  guilty  of  adultery,  for  the  first  offense  is  punished  by 
having  her  hair  cropped ;  for  repeated  offenses  her  left  ear  is  cut 
off. 

14.  THEFT 

The  punishment  for  theft  is  twofold  restitution.  When  the 
prosecutor  and  prosecuted  belong  to  the  same  gens,  the  trial  is 
before  the  council  of  the  gens,  and  from  it  there  is  no  appeal.  If 
the  parties  involved  are  of  different  gentes,  the  prosecutor,  through 
the  head  of  his  household,  lays  the  matter  before  the  council  of 
his  own  gens;  by  it  the  matter  is  laid  before  the  gentile  council 
of  the  accused  in  a  formal  manner.  Thereupon  it  becomes  the 
duty  of  the  council  of  jl^p  pppiispH  to  investigate  the  facts  for 
themselves,  and  to  settle  the  matter  with  the  council  of  the  plaintiff. 
Failure  thus  to  do  is  followed  by  retaliation  in  the  seizing  of  any 
property  of  the  gens  which  may  be  found. 


288  KETARDED   PEOPLES  [Part  II. 

15.  MAIMING 

Maiming  is  compounded,  and  the  method  of  procedure  in  prose- 
cution is  essentially  the  same  as  for  theft. 

16.  MURDER 

In  the  case  of  murder,  if  both  parties  are  members  of  the  same 
gens,  the  matter  is  tried  by  the  gentile  council  on  complaint  of 
the  head  of  the  household,  but  there  may  be  an  appeal  to  the 
council  of  the  tribe.  Where  the  parties  belong  to  different  gentes, 
complaint  is  formally  made  by  the  injured  party,  through  the 
chief  of  his  gens,  in  the  following  manner : 

A  wooden  tablet  is  prepared,  upon  which  is  inscribed  the  totem 
or  heraldic  emblem  of  the  injured  man's  gens,  and  a  picture- 
writing  setting  forth  the  offense  follows. 

The  gentile  chief  appears  before  the  chief  of  the  council  of  the 
offender,  and  formally  states  the  offense,  explaining  the  picture- 
writing,  which  is  then  delivered. 

A  council  of  the  offender's  gens^istEereupon  called  and  a  trial 
is  held.  It  isthe  duty  of  this  council  to  examine  the  evidence 
for  themselves  and  to  come  to  a  conclusion  without  further  pres- 
entation of  the  matter  on  the  part  of  the  person  aggrieved. 
Having  decided  the  matter  among  themselves,  they  appear  before 
the  chief  of  the  council  of  the  aggrieved  party  to  offer  compensation. 

If  the  gens  of  the  offender  fail  to  settle  the  matter  with  the  gens 
of  the  aggrieved  party,  it  is  the  duty  of  his  nearest  relative  to 
avenge  the  wrong.  Either  party  may  appeal  to  the  council  of 
the  tribe.  The  appeal  must  be  made  in  due  form,  by  the  presen- 
tation of  a  tablet  of  accusation. 

Inquiry  into  the  effect  of  a  failure  to  observe  prescribed  formali- 
ties developed  an  interesting  fact.  In  procedure  against  crime, 
failure  in  formality  is  not  considered  a  violation  of  the  rights  of 
the  accused,  but  proof  of  his  innocence.  It  is  considered  super- 
natural evidence  that  the  charges  are  false.  In  trials  for  all 
offenses  forms  of  procedure  are,  therefore,  likely  to  be  earnestly 
questioned. 

17.  TREASON 

Treason  consists  in  revealing  the  secrets  of  the  medicine  prepa- 
rations or  giving  other  inforination  or  assistance  to  enemies  of  the 
tribe,  and  is  punished  by  death.  The  trial  is  before  the  council  of 
the  tribe. 


Chap.  X.]  WYANDOT   GOVERNMENT  289 

18.  WITCHCRAFT 

Witchcraft  is  punished__bx_d£iath,  stabbing,  tomahawking,  or 
burning.  Charges  of  witchcraft  are  investigated  by  the  grand 
council  of  the  tribe.  When  the  accused  is  adjudged  guilty,  he 
may  appeal  to  supernatural  judgment.  The  test  is  by  fire.  A 
circular  fire  is  built  on  the  ground,  through  which  the  accused 
must  run  from  east  to  west  and  from  north  to  south.  If  no 
injury  is  received  he  is  adjudged  innocent ;  if  he  falls  into  the  fire 
he  is  adjudged  guilty.  Should  a  person  accused  of  having  the 
general  reputation  of  practicing  witchcraft  become  deaf,  blind,  or 
have  sore  eyes,  earache,  headache,  or  other  diseases  considered 
loathsome,  he  is  supposed  to  have  failed  in  practicing  his  arts 
upon  others,  and  to  have  fallen  a  victim  to  them  himself.  Such 
cases  are  most  likely  to  be  punished. 

19.   OUTLAWRY 

The  institution  of  outlawry  exists  among  the  Wyandots  in  a 
peculiar  form.  An  outlaw  is  one  who  by  his  crimes  has  placed 
himself  without  the  protection  of  his  clan.  A  man  can  be  declared 
an  outlaw  by  his  own  clan,  who  thus  publish  to  the  tribe  that  they 
will  not  defend  him  in  case  he  is  injured  by  another.  But  usually 
outlawry  is  declared  only  after  trial  before  the  tribal  council. 

The  method  of  procedure  is  analogous  to  that  in  case  of  jnurder. 
When  the  person  has  been  adjudged  guilty  and  sentence  of  out- 
lawry declared,  it  is  the  duty  of  the  chief  of  the  Wolf  clan  to  make 
known  the  decision  of  the  council.  This  he  does  by  appearing 
before  each  clan  in  the  order  of  its  encampment,  and  declaring  in 
terms  the  crime  of  the  outlaw  and  the  sentence  of  outlawry, 
which  may  be  either  of  two  grades. 

In  the  lowest  grade  it  is  declared  that  if  the  man  shall  there- 
after continue  in  the  commission  of  similar  crimes,  it  will  be  law- 
ful for  any  person  to  kill  him ;  and  if  killed,  rightfully  or  wrong- 
fully, his  clan  will  not  avenge  his  death. 

Outlawry  of  the  highest  degree  makes  it  the  duty  of  any  mem- 
ber of  the  tribe  who  may  meet  with  the  offender  to  kill  him. 

20.  MILITARY  GOVERNMENT 

The  management  of  military  affairs  inheres  in  the  military 
council  and  chief.  The  militaT^^COuncil  is  composed  of  all  the 
able-bodiedjii£n^o£-the-4ribe ;  the  military  chief  is  chosen  by  the 
council  from  the  Porcupine  gens.     Each  gentile  chief  is  respon- 


290  RETARDED   PEOPLES  [Part  II. 

sible  for  the  military  training  of  the  youth  under  his  authority. 
There  is  usually  one  or  more  potential  military  chiefs,  who  are  the 
close  companions  and  assistants  of  the  chief  in  time  of  war,  and  in 
case  of  the  death  of  the  chief,  take  his  place  in  the  order  of  seniority. 

Prisoners  of  war  are  adopted  into  the  tribe  or  killed.  To  be 
adopted  into  the  tribe,  it  is  necessary  that  the  prisoner  should  be 
adopted  into  some  family.  The  warrior  taking  the  prisoner  has 
the  first  right  to  adopt  him,  and  his  male  or  female  relatives  have 
the  right  in  the  order  of  their  kinship.  If  no  one  claims  the  prisoner 
for  this  purpose,  he  is  caused  to  run  the  gauntlet  as  a  test  of  his 
courage. 

If  at  his  trial  he  behaves  manfully,  claimants  are  not  wanting, 
but  if  he  behaves  disgracefully  he  is  put  to  death. 

21.  FELLOWHOOD 

There  is  an  interesting  institution  found  among  the  Wyandots, 
as  among  some  other  of  our  North  American  tribes,  namely,  that 
of  fellowhood.  Two  young  men  agree  to  be  perpetual  friei;^ds  to 
each  otEer,  or  more  than  brothers.  Each  reveals  to  the  other  the 
secrets  of  his  life,  and  counsels  with  him  on  matters  of  importance, 
and  defends  him  from  wrong  and  violence,  and  at  his  death  is 

chief  mourner. 

22.  CONCLUSIONS 

The  government  of  the  Wyandots,  with  the  social  organization 

upon  which  it  is  based,  affords  a  typjoa]  ey^^m^^A-Qf  trihal  gQVf^m- 

ment  throughout  North  America.  Within  that  area  there  are 
several  him3red  distinct  governments.  In  so  great  a  number 
there  is  great  variety,  and  in  this  variety  we  find  different  degrees 
of  organization,  the  degrees  of  organization  being  determined  by 
the  differentiation  of  the  functions  of  the  government  and  the 
correlative  specialization  of  organic  elements. 

Much  has  yet  to  be  done  in  the  study  of  these  governments 
before  safe  generalizations  may  be  made.  But  enough  is  known 
to  warrant  the  following  statement : 

Tribal  government  in  North  America  is  based  j)n,  kinship^  ia_ 
that  the  fundamental  units  of  social  organization  are  bodies  of 
consanguineal  kmdrea  either  in  the  male  or  female  line;    these 
units  being  what  has  been  well  denominated  "gentes." 

These  "gentes"  are  organized  into  tribes  by  ties  of  relationship 
and  affinity,  and  this  organization  is  of  such  a  character  that  the 
man's  position  in  the  tribe  is  fixed  by  his  kinship.  There  is  no 
place  in  a  tribe  for  any  person  w^hose  kinship  is  not  fixed,  and  only 


Chap.  X.]  WYANDOT   GOVERNMENT  .    291 

those  persons  can  be  adopted  into  the  tribe  who  are  adopted  into 
some  family  with  artificial  kinship  specified.  The  fabric  of 
Indian  society  is  a  complex  tissue  of  kinship.  The  warp  is  made 
of  streams  of  kinship  blood,  and  the  woof  of  marriage  ties. 

With  most  tribes  military  and  civil  affairs  are  differentiated. 
The  functions  of  civil  government  are  in  general  differentiated 
only  to  this  extent,  that  executive  functions  are  performed  by 
chiefs  and  sachems,  but  these  chiefs  and  sachems  are  also  mem- 
bers of  the  council.  The  council  is  legislature  and  court.  Per- 
haps it  were  better  to  say  that  the  council  is  the  court  whose  deci- 
sions are  law,  and  that  the  legislative  body  properly  has  not  been 
developed. 

In  general,  crimes  are  well  defined.  Procedure  is  formal,  and 
forms  are  held  as  of  such  importance  that  error  therein  is  prima 
facie  evidence  that  the  subject-matter  formulated  was  false. 

When  one  gens  charges  crime  against  a  member  of  another,  it 
can  of  its  own  motion  proceed  only  to  retaliation.  To  prevent 
retaliation,  the  gens  of  the  offender  must  take  the  necessary  steps 
to  disprove  the  crime,  or  to  compound  or  punish  it.  The  charge 
once  made  is  held  as  just  and  true  until  it  has  been  disproved,  and 
in  trial  the  cause  of  the  defendant  is  first  stated.   .  .   . 

In  the  tribal  governments  there  are  many  institutions,  customs, 
and  traditions  which  give  evidence  of  a  former  condition  in  which 
society  was  based  not  upon  kinship,  but  upon  marriage. 

From  a  survey  of  the  facts  it  seems  highly  probable  that  kin- 
ship society,  as  it  exists  among  the  tribes  of  North  America,  has 
developed  from  connubial  society,  which  is  discovered  elsewhere 
on  the  globe.  In  fact,  there  are  a  few  tribes  that  seem  scarcely 
to  have  passed  that  indefinite  boundary  between  the  two  .social 
states.     Philologic  research  leads  to  the"  same  conclusion. 

Nowhere  in  North  America  have  a  people  been  discovered  who 
have  passed  beyond  tribal  society  to  national  society  based  on 
property,  i.e.,  that  form  of  society  which  is  characteristic  of 
civilization.  Some  peoples  may  not  have  reached  kinship  society ; 
none  have  passed  it. 

Nations  with  civilized  institutions,  art  with  palaces,  monotheism 
as  the  worship  of  the  Great  Spirit,  all  vanish  from  the  priscan  con- 
dition of  North  America  in  the  light  of  anthropologic  research. 
Tribes  with  the  social  institutions  of  kinship,  art  with  its  highest 
architectural  development  exhibited  in  the  structure  of  com- 
munal dwellings,  and  polytheism  in  the  worship  of  mythic  animals 
and  nature-gods  remain. 


Chapter  XI 

KAFIR  LAWS  AND   CUSTOMS  ^ 

Section  1 
THE  AMAXOSA  TRIBES       ' 
1.  THE  GOVERNMENT  AND  ITS  PRACTICAL  OPERATION 

It  is  common  to  talk  of  the  despotism  of  Kafir  chiefs.  If  by 
the  use  of  this  term  it  is  intended  to  be  impHed  that  the  will  of 
the  chief  is  the  sole  law  of  the  nation,  it  is  incorrect.  The  govern- 
ment amongst  the  tribes  on  this  side  of  the  Bashee  is  not  a  des- 
potism. Such  a  term  may  be  applicable  to  the  rule  of  Mosheshe, 
the  Basutu  chief,  who  boasted  that  when  he  spoke  the  mountains 
moved ;  or  to  the  tyranny  of  Tshaka,  the  head  of  the  Amazulu, 
who  would  order  a  number  of  his  people  unarmed  to  catch  a 
hippopotamus  alive,  and  he  obeyed,  too,  so  far  at  least  as  the  attempt 
was  concerned,  although  it  involved  the  certain  and  wanton 
sacrifice  of  many  lives.  The  government  of  the  Amaxosa  and 
Abatembu  tribes  is  a  sort  of  mixture  of  Patriarchism  and  I^f^n^ 
dalism.  A^p  giYgS_gIggj^  ^^'ght  and  influence  to  the  will  of  a 
chief,  and  most  chiefs  of  rank  can  generally  find  means  to  accom- 
plish.their  wishes  ;  but  if  these  wishes  involve  the  death  or  spolia- 
tion of  any  of  their  subjects,  they  are  usually  obliged  to  resort  to 
some  form  of  law  to  give  colour  to  their  procedure.  In  the  case 
of  a  Kafir  chief,  the  principal  checks  to  the  despotic  inclinations 
which  the  possession  of  power  always  induces  are,  first,  the  drvjsinn"- — 
of  the  tribes,  and  secondly,  the  existence  of  a  very  influentjaL. 
coungil. 

The  operation  of  succession  to  the  chieftainship,  which  was 
explained  in  the  ''Christian  Watchman"  for  September,  has  led 
to  the  formation  of  various  tribes  nearly  equal  in  power  to  each 

1  [Reprinted  from  ' '  A  Compendium  of  Kafir  Laws  and  Customs  (in- 
cluding Genealogical  Tables  of  Kafir  Chiefs  and  various  Tribal  Census 
Returns)";  compiled  by  direction  of  Colonel  Maclean,  C.B.,  Chief 
Commissioner  in  British  Kaffraria  (Grahamstown,  1906).  The  present 
account  was  written  by  Rev.  H.  H.  Dugmore.] 

292 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  293 

other.  It  is  very  common  for  persons  who  have  exposed  them- 
selves to  the  ire  of  their  own  chiefs,  to  take  refuge  amongst  some 
tribe  adjoining;  and  on  doing  so,  they  become  so  far  safe  as  to 
be  within  the  protection  of  a  custom  which  forbids  their  arbitrary 
seizure  by  their  own  chief,  and  places  them  on  the  same  footing 
(until  investigation  take  place)  as  the  subjects  of  the  chief  amongst 
whose  people  they  have  taken  refuge.  Any  attempt  to  interfere 
with  them  by  violence,  when  once  they  are  within  the  territory 
of  another  tribe,  would  be  resented  by  an  instant  rising  of  the  clans 
nearest  them  in  their  defence,  and  that  without  any  enquiry  as  to 
the  merits  of  the  case.  The  desire  of  each  chief  to  increase  the 
number  of  his  retainers,  often  induces  him  to  throw  obstacles  in 
the  way  of  any  investigation  that  would  be  likely  to  lead  to  the 
surrender  of  any  man  who  had  placed  himself  under  his  authority 
and  protection  from  another  tribe.  It  is  therefore  very  common 
for  all  farther  prosecution  of  a  chief's  quarrel  with  his  delinquent 
subject  to  be  abandoned,  on  the  culprit  once  gaining  the  *^ity . 
ofrefu^e"  which  another  tribe  affords  him.  The  practical  limi- 
tation of  the  power  of  the  chiefs,  arising  from  the  above  circum- 
stances, is  easily  perceived. 

The  existence  of  a  council,  in  which  all  matters  of  importance 
are  discussed  at  length,  is  another  check  upon  the  power  of  the 
chiefs.  This  council,  the  members  of  which  are  called  Amapakati 
(literally  ^^  Middle  ones")^  is  composed  of  commoners,  who,  by 
their  courage  in  war,  or  their  skill  in  debate  on  public  questions, 
or  in  unravelling  intricate  law  suits,  have  acquired  great  popular 
influence,  and  are  thus  qualified  to  sustain  or  control  the  power 
of  the  chiefs.  They  generally  reside  in  different  parts  of  the 
country,  and  have  a  sort  of  civil  jurisdiction  over  their  respective 
neighbourhoods.  A  few  of  them  are  mostly  to  be  found  at  the 
chief's  residence,  but  on  the  occurrence  of  any  matter  of  public 
importance,  the  arrival  of  a  message  of  consequence  from  the 
chief  of  another  tribe,  or  the  proposition  of  any  particular  measure 
on  the  part  of  their  own  chief,  they  are  all  summoned  to  the  umzi 
wakwomkulu,  and  no  decision  is  come  to  till  the  matter  has  been 
thoroughly  discussed  in  all  its  bearings.  As  every  one  of  these 
Amapakati  has  his  own  partizans  and  favourites  in  the  tribe^  so 
the  shield  of  the  patron  is  often  interposed  between  his  client  and 
his  chief. 

The  operation  of  the  influence  of  the  Amapakati  in  modifying 
the  power  of  the  chiefs  is  remarkable,  as  it  has  its  periodical  revo- 
lutions, its  waxings  and  wanings.     Some  idea  of  the  nature  of 


294  RETARDED   PEOPLES  [Part  II. 

these  alterations  may  be  acquired  by  tracing  the  operation  of  a 
custom,  which  exists  amongst  the  principal  chiefs,  of  making  one 
of  the  youngest  of  their  wives  the  **  great  wife."  The  ground  of 
this  custom  will  be  best  understood  from  a  view  of  the  usual 
career  of  a  chief  in  relation  to  his  matrimonial  alliances. 

The  first  wife  of  a  Kafir  chief,  ''the  wife  of  his  youth,"  is  not 
unfrequently  taken  from  amongst  the  families  of  his  own  council- 
lors. He  is  as  yet  "unknown  to  fame ;"  his  wealth  is  not  so  con- 
siderable as  it  is  to  be.  After  awhile  his  alliance  becomes  more 
worthy  the  attention  of  those  of  other  tribes,  whose  daughters 
demand  a  higher  dowry  than  was  required  by  the  humbler  parents 
of  his  first  wife.  Another  and  another  are  sent  to  him;  for  it 
must  be  borne  in  mind  that  a  Kafir  chief  does  not  choose  his  own 
wives.  He  is  surprised  from  time  to  time  by  the  arrival  of  a 
bridal  party,  bringing  with  them  as  his  offered  bride  some  chief's 
daughter  whom  he  has  never  seen  before.  The  danger  of  refusing 
her  is  according  to  the  rank  and  power  of  the  family  to  which  she 
belongs,  for  to  refuse  such  an  alliance  is  to  offer  a  public  insult  to 
the  whole  tribe.  The  usual  order  of  things,  then,  is,  that  as  a 
chief  grows  older  and  richer,  wives  of  higher  rank  are  sent  to  him, 
and  the  reasons  which  operate  against  their  refusal  operate  also 
against  their  having  an  inferior  rank  allotted  to  them  in  the  suc- 
cessional  distribution.  vEll£-XQQther  of  him  who  is  to  be  the  ''  great 
son"  may  th^s  bp  thp  last  wife  the  chief  has  taken,  which  is  in 
fact  sometimes  the  case. 

The  result  of  this  process  is,  that  a  rhiVf^  dyipg  in  his  njd  njo^p, 
leaves  a  minor,  often_a_mere  childj_to_supr>ppdJwyr.  What  then 
is  the  position  of  the  young  chief?  He  finds  himself  surrounded 
by  a  number  of  greyheaded  veteran  associates  of  his  father,  who 
are  strong  in  the  possession  of  long  continued  popular  influence, 
and  insolent  from  their  consciousness  of  possessing  it.  If  he  will 
yield  himself  to  their  sway,  hjs  course  is  smoothened  for  him ;  if 
he  manifests  much  self-will,  they  do  not  scruple  to  remind  him 
that  they  were  the  councillors  and  companions  of  his  father  before 
he  was  born ;  that  his  mother  owed  her  appointment,  and  conse- 
quently her  son  his  rank,  to  their  advice  and  influence,  and  they 
will  sometimes  hint  that  they  can  unmsLke  as  well  as  make  chiefs ; 
and  threaten  him  with  the  elevation  of  a  brother  as  a  rival. 

The  rulfi^of  a  young  chief  is  thuo  in  reality  the  rule  of  the  old 
councillors  oj^the  tribe.  The  relative  position  of  the  two  parties, 
however,  gradually  changes.  While  the  young  chief  is  advancing 
towards  the  vigour  and  resolution  of  manhood,  the  course  of  nature 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  295 

is  carrying  the  most  venerable  of  his  haughty  mentors  to  the 
grave,  and  thus  removing  some  of  the  most  formidable  obstacles 
to  his  own  exercise  of  power.  On  the  other  hand,  his  own  party, 
formed  of  the  young  and  active  spirits  of  the  tribe,  is  growing  in 
strength.  By  degrees  he  ventures  on  bolder  measures.  One  after 
another  of  the  old  Amapakati  falls  a  victim  to  an  accusation  of 
witchcraft,  the  Kafir  state  engine  for  the  removal  of  the  obnoxious, 
and  by  the  time  the  young  chief  has  grown  old  in  his  turn,  he  has 
surrounded  himself  with  another  set  of  councillors,  who,  enriched 
by  the  spoils  of  their  predecessors,  and  inheritors  of  their  in- 
fluence, are  prepared  to  do  for  the  successor  of  their  master  what 
their  own  forerunners  and  victims  did  for  himself,  to  be  in  their 
turn  the  victims  of  a  system  perpetuated  from  generation  to 
generation. 

Such  in  one  point  of  view  is  the  practical  working  of  the  Kafir 
system  of  government,  as  regards  the  tribes  individually  considered. 
That  under  such  a  system  there  should  be  more  than  enough  of 
tyranny,  might  be  inferred  from  the  natural  rapacity  of  power. 
But  it  is  not  the  tyranny  of  one,  whose  will  ho  other  dares  to 
thwart.  It  is  divided  amongst  many,  and  is  often  more  or  less 
neutralized  by  the  rival  popular  interests  of  the  tyrannizers 
themselves. 

A  view  of  the  constitutional  sources  of  a  Kafir  chief's  revenue,, 
and  its  expenditure,  will  throw  a  little  more  light  on  this  subject. 

As  cattle  constitute  the  sole  wealth  of  the  people,  so  they  are 
their  only  medium  of  such  transactions  as  involve  exchange,  pay- 
ment, or  reward.  The  retainers  of  a  chief  serve  him  for  cattle; 
nor  is  it  expected  that  he  could  maintain  his  influence,  or  indeed 
secure  any  number  of  followers,  if  unable  to  provide  them  with 
what  at  once  constitutes  their  money,  food,  and  clothing.  He 
requires,  then,  a  constant  fund  from  which  to  satisfy  his  depend- 
ents ;  and  the  amount  of  the  fund  required  may  be  judged  of  from 
the  character  of  the  demand  made  upon  him.  His  retinue,  court, 
or  whatever  it  is  to  be  called,  consists  of  men  from  all  parts  of 
the  tribe,  the  young,  the  clever,  and  the  brave,  who  come  to  busa 
(do  court  service),  for  a  time,  that  they  may  obtain  cattle  to 
furnish  them  with  the  means  of  procuring  wives,  arms,  or  other 
objects  of  desire.  On  obtaining  these  they  return  to  their  homes 
and  give  place  to  others.  Thus  the  immediate  retinue  of  the  chief 
is  continually  changing,  and  constitutes  a  permanent  drain  upon 
his  resources.     To  meet  this  he  has  — 

1.   The  inherited  cattle  of  his  father.     Not  that  he  inherits 


296  RETARDED   PEOPLES  [Part  II. 

the  whole  of  his  father's  cattle.  A  prospective  division  of  these 
is  made  at  the  time  of  the  successional  division  of  the  chieftainship. 
The  portion  allotted  to  the  "great"  house,  the  cattle  of  the  Umzi 
wakwomkulu,  constitute  the  inheritance  of  the  "great"  son.  This 
previous  division  of  his  father's  property  thus  obliges  every  chief 
to  begin  his  "reign"  with  less  wealth  than  his  father  possessed. 

2.  The  Amawakhe,  or  inauguration  offerings.  These  consist 
of  cattle,  made  on  the  day  the  chief  completes  his  novitiate  after 
circumcision.  It  having  been  previously  announced  to  all  the 
chiefs  of  rank  in  the  nation,  a  grand  meeting  of  the  principal 
men  of  the  tribe  takes  place  on  the  day  appointed;  the  young 
chief  is>  presented  to  thei  councillors  of  his  father,  who  lecture 
him,  in  terms  not  the  most  courteous  or  respectful,  on  his  future 
conduct;  the  offerings  and  presents  of  the  chiefs  of  other  tribes 
are  received,  and  constitute  a  formal  recognition  of  their  young 
compeer,  and  an  acknowledgment  of  his  rank,  which  accordingly 
dates  from  that  ceremony. 

3.  The  Ukuqola.  This  is  a  sort  of  occasional  tribute  or  "be- 
nevolence," as  our  old  Enghsh  Sovereigns  would  term  it,  and 
consists  of  cattle  furnished  by  the  rich  commoners  of  the  chief's 
own  tribe,  to  assist  him  in  some  special  emergency. 

4.  Fines  and  confiscations.  The  universal  punishment  for 
crim^  is  foiing :  cases  of  supposed  witchcraft  excepted,  which 
usually  involve  the  torture  and  cruel  death  of  the  party  accused, 
and  the  seizure  of  all  he  possesses.  In  levying  fines,  however,  a 
distinction  is  made  between  cases  involving  personal  injury,  and 
those  which  affect  property  merely.  Persons  are  considered  the 
property  of  the  chief.  Fines  imposed  for  acts  of  violence  com- 
mitted on  the  person  —  cases  of  "blood"  —  are  accordingly 
claimed  by  him,  and  the  person  or  family,  whose  blood  has  been 
shed,  receives  no  part  of  it.  In  what  may  be  termed  the  ciml 
cases,  i.e.y  those  infringing  on  the  rights  of  individual  property, 
the  party  aggrieved  claims  the  fine  levied;  but  is  nevertheless 
expected  to  fee  the  chief  and  his  officials  pretty  liberally  out  of 
it ;  supposing  the  case  to  have  been  brought  before  him  for  legal 
investigation,  which  however  is,  generally  speaking,  only  when  the 
^' lower  courts"  have  been  unable  to  settle  it. 

The  above  may  be  termed  the  regular  sources  of  a  Kafir  chief's 
revenue.  Presents  extorted  by  personal  importunity  during  visits 
of  friendship,  and  the  results  of  predatory  excursions,  belong  to 
the  "unfixed  contingencies." 

From  the  above  remarks  it  will  be  seen  that  a  Kafir  chief  is  in^ 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  297 

sQrnf^  respects  dependent  upon-ttie-^odwill  uf  his  [JHiiple,  and 
that  it  is  necessary  he  should  to  a  certain  extent  cultivate  the  arts 
of  popularity.  Accordingly,  the  cases  of  glaring  oppression  are 
only  occasional,  and  occur  where  the  hope  of  sharing  in  the  spoil 
leads  the  majority  of  the  Amapakati  to  support  their  chief  in 
victimizing  some  unfortunate  individual  whose  wealth  constitutes 
his  crime. 

The  foregoing  observations  chiefly  respect  the  administration 
of  the  tribes  separately  considered.  There  is,  however,  a  sort  of 
general  government,  centring  in  the  chief  and  council  of  the 
tribe  first  in  hereditary  rank,  which  extends  to  all  the  other  tribes. 
It  is,  indeed,  of  rather  a  loose  character,  and  interferes  with  the 
internal  affairs  of  individual  tribes  only  in  cases  of  appeal,  or 
when,  as  sometimes  occurs,  the  chief  of  the  tribe  himself  refers 
the  case  to  the  ''great  chief  for  decision.  Its  general  sphere  of 
exercise  is  in  such  matters  as  affect  the  relations  of  the  tribes 
with  each  other.  In  any  case  of  this  nature  which  may  arise,  the 
decision  is  supposed  to  rest  with  the  ukumkani,  as  the  paramount 
chief  is  designated.  It  is  accordingly  expected  that  the  parties 
concerned  will  send  their  respective  representations  on  the  merits 
of  the  case  to  the  council  of  the  ukumkani,  to  be  tried  there.  The 
sickness  or  death  of  any  secondary  or  subordinate  chief ;  disputes 
with  regard  to  ''the  succession"  in  any  of  the  secondary  tribes; 
insults  or  injuries  deemed  to  afford  cause  for  an  attack  by  one  tribe 
on  another ;  are  among  the  cases  of  which  the  general  government 
takes  cognizance :  and  any  subordinate  tribe  which  should  neg- 
lect to  send  a  formal  report  of  such  matters  to  the  "great  place," 
and  abide  by  the  decision  there  pronounced,  would  be  considered 
as  having  contemned  the  authority  of  the  supreme  government, 
and  would  be  amenable  accordingly. 

Such  is,  in  brief  outline,  the  system  of  government  which  ob- 
tains amongst  the  tribes  of  the  Amaxosa.  It  is,  like  other  govern- 
ments, the  offspring  of  circumstances  to  a  considerable  extent : 
and  although  defective  in  many  important  respects,  forms  one 
amongst  a  variety  of  facts  which  give  a  practical  contradiction 
to  the  assertion  that  the  Kafirg^bH^^g  ^^^  ^^^  Inwast  grqde  nf  the 
earth's  population  in  poinL-Of  JTit^^^^^-"'^^  rJA^r^lnprnant  i  That 
it  is  very  desirable  it  should  be  superseded  by  something  better, 
may,  however,  be  readily  granted,  and  will  perhaps  appear  all 
the  more  fully  if  we  notice  a  few  of  the  defects  which  it 
presents. 

1  See  Prichard's  "Physical  History  of  Man." 


298  RETARDED   PEOPLES  [Part  II. 

1.  With  the  exception  of  the  principle  of  hereditary  succession, 
it  recognizesno  fixedconstitution  or  systenTof  legislation.  The 
appointmenFof  the^rimary  chieftainship  is  frequently  the  subject 
of  caprice  or  intrigue,  as  might  be  expected  where  a  plurality  of 
wives  obtains,  and  rival  family  interests  present  their  clashing 
claims.  There  is  at  present  a  case  in  point,  in  the  circumstances 
of  the  Imidushane,  one  of  the  principal  tribes  on  the  frontier; 
where,  a  fit  of  personal  disgust  having  led  Dushane  to  the  informal 
supersession  of  his  "great  wife"  by  another,  two  rival  candidates 
for  ubukulu  (greatness)  have  arisen  in  the  two  sons  whose  mothers 
have  thus  at  different  times  been  claimants  of  the  rank  so  much 
coveted.  Nor  was  the  disputed  succession  settled  when  .the  pres- 
ent war  broke  out. 

And  then  w^ith  regard  to  the  principles  of  administration :  — 
Some  regard  is  paid  to  the  decision  of  such  chiefs  of  former  days 
as  were  of  note  for  sagacity  and  wisdom;  and  appeals  are  often 
made  to  them  in  the  council  debates,  as  furnishing  general  grounds 
upon  which  to  decide  existing  cases.  These  are,  however,  for- 
gotten in  the  course  of  a  generation  or  two ;  and  thus  cease  to  influ- 
ence after  the  lapse  of  a  few  years.  Besides  which,  a  chief  of  the 
present  generation  may  equal  or  surpass  his  forefathers  in  wisdom, 
and  thus  his  decisions,  although  differing  in  many  respects  from 
theirs,  may  come  to  be  the  oracles  of  his  children  in  preference 
to  those  of  an  earlier  date.  The  government  is  thus  liable  in  this 
respect  to  incessant  fluctuation,  being  destitute  of  the  solid  basis 
for  regular  action,  which  fixed  principles  alone  can  afford. 
/^2.  It  confounds  the  legislative,  judicial,  and  executive  depart- 
(  ments.  —  The  laws  originate  in  the  decisions  of  the  chief  and  his 
council;  but  the  same  council  forms  the  great  law-court  of  the 
tribe,  in  which  the  chief  sits  as  judge,  and  afterwards  enforces 
the  execution  of  his  own  sentences,  or  perhaps  inflicts  the  awarded 
punishment  with  his  own  hand.  It  is  needless  to  enlarge  on  the 
practical  effect  of  this.  It  is  universally  admitted  to  be  dangerous 
to  the  claims  of  justice,  when  the  same  party  that  is  to  administer 
the  law  is  entrusted  to  makpJtA 

3.  It  affords  no  guarantee  for  the  uniform  administration  of 
justice.  — There  is  no  "letter  of  the  law"  to  appeal  to,  and  thus 
there  is  much  scope  for  the  exercise  of  favoritism ;  of  which, 
doubtless,  from  the  powerful  influence  of  the  principal  councillors, 
very  much  exists.  The  facility  of  escape  to  another  tribe,  already 
noticed,  is  farther  obstructive  to  the  impartial  administration  of 
justice,  even  in  cases  where  the  law  is  clear,  and  thus  greatly  checks 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  299 

the  repression  of  crime  by  the  impunity  which  it  offers  to  delin- 
quents in  affording  them  a  place  of  refuge. 

The  above  considerations  may  serve  to  show  that  for  the  true 
ends  of  government,  the  conservation  of  order,  and  the  promo- 
tion of  social  comfort  and  happiness,  the  system  existing  amongst 
the  Kafir  tribes  is  destitute  of  energy  and  efficiency. 

On  the  other  hand,  lawless  and  predatory  habits  are  greatly 
fostered  by  the  peculiar  position  and  privileges  of  the  untitled 
members  of  the  chiefs'  families.  In  the  numberless  ramifications 
of  these  which  exist,  there  is  provided  an  exhaustless  supply  of 
leaders  for  any  enterprise  which  promises  booty,  and  there  are 
always  numbers  of  young  men  of  a  restless,  roving  disposition 
ready  for  any  career  of  adventure  that  holds  out  the  prospect  of 
obtaining  cattle.  Disputes  and  quarrels  furnish  frequent  excuses 
for  petty  expeditions  of  this  kind,  in  which  cattle  are  swept  off 
as  a  speedy  mode  of  settling  what  the  regular  process  of  law  might 
take  some  time  to  decide.  These  give  occasion  for  others  of  a 
similar  character  by  way  of  reprisal ;  and  as  opportunities  for  dis- 
playing courage  and  address  are  afforded  by  such  forays,  and  as 
there  is  little  to  lose  in  them  for  those  who  have  nothing,  and  at 
least  the  prospect  of  gain  to  stimulate  them,  in  addition  to  the 
pride  of  distinction,  such  enterprises  are  very  popular,  although 
they  often  lead  to  feuds  of  a  serious  character,  and  of  course  op- 
pose a  formidable  obstacle  to  social  advancement. 


2.  LAWS  AND  LEGAL  PROCESSES 

It  would  be  scarcely  correct  to  speak  of  a  system  of  Kafir  law. 
The  laws  of  the  Kafir  tribes  are  but  a  collection  of  precedents, 
consisting  of  the  decisions  of  the  chiefs  and  councils  of  bygone 
days,  and  embodied  in  the  recollections,  personal  or  traditional, 
of  the  people  of  the  existing  generation.  That  these  decisions, 
in  the  first  instance,  were  founded  upon  some  general  notion  of 
right,  is  not  unlikely.  It  is  not,  however,  to  the  abstract  merits 
of  a  case  that  the  appeal  is  now  ordinarily  made,  in  legal  dis- 
cussions, but  to  what  has  been  customary  in  past  times.  The 
decisions  of  deceased  chiefs  of  note  are  the  guide  for  the  living  in 
similar  circumstances.  The  justice  of  those  decisions  is  usually 
assumed  as  a  matter  of  course,  no  one  presuming  to  suppose  that 
an  Amaxosa  chief,  any  more  than  an  English  king,  can  do  "wrong." 
The  changing  condition  of  the  tribes,  arising  from  their  growing 
intercourse  with  a  civilised  people  is,  however,  gradually  introduc- 


300  RETARDED   PEOPLES  [Part  II. 

ing  more  complicated  questigns  amongst  them ;  and  thus  the  deci- 
sions of  the  Ancients  are  becoming  less  applicable  to  the  circum- 
stances of  the  Moderns  than  formerly.  The  result  is,  that  more 
difficulty  is  felt  in  deciding,  and  the  "glorious  uncertainty"  of 
the  law  of  more  enlightened  lands  is  finding  its  way  into  the 
"courts"  of  Kaffraria. 

In  presenting  a  brief  sketch  of  "Kafir  Law,"  it  may  be  observed 
in  the  first  place,  that  a  distinction  obtains  in  some  respects  similar 
to  that  which  exists  amongst  us  between  Criminal  and  Civil  law. 
In  one  class  of  cases  the  chief  is  always  considered  the  aggrieved 
party,  and  the  action  is  always  entered  on  his  behalf.  In  the  other, 
the  people  are  the  only  parties  concerned,  the  chief  having  to  do 
with  the  matter  in  his  capacity  of  judge  merely.  The  principle 
which  regulates  the  classification  of  cases  is,  however,  one  that 
makes  a  very  different  division  of  the  civil  from  the  criminal  to 
that  which  obtains  in  civilized  jurisprudence.  This  principle  is, 
that  a  man's  goods  are  his  own  property,  but  his  person  is  the  prop- 
erty of  his  chief.  Thus,  if  his  possessions  be  invaded,  he  claims 
redress  for  himself;  but  if  his  person  be  assaulted,  and  bodily 
injury  be  the  result,  it  becomes  his  owner's  concern.  In  the  latter 
ease,  however  heavily  the  offender  may  be  fined,  the  actual  sufferer 
derives  no  benefit.  "No  man  can  eat  his  own  blood,"  is  the 
maxim  which  regulates  this  procedure ;  and  as  the  fines  levied  for 
personal  injuries  are  considered  the  "price  of  blood,"  whoever 
.should  receive  any  part  of  such  fine  in  a  case  where  he  had  himself 
been  the  sufferer,  would  be  regarded  as  violating  this  maxim. 

The  Kafir  "criminal  code"  then,  may  be  viewed  as  comprising 
whatever  cases  can  be  arranged  under  the  general  heads  of  trea- 
son, murder,  assault,  and  witchcraft.  The  "civil"  all  that  have 
reference  to  property ;  including  as  such  a  man's  wife  as  the  prin- 
cipal article,  and  his  character  as  the  next ;  and  proceeding  down- 
wards through  his  various  kinds  of  live-stock  to  his  houses,  gran- 
aries, and  cornfields.  A  "good  name"  is  deemed  of  such  worth 
(possibly  on  the  principle  that  the  scarcity  or  rarity  of  an  article 
enhances  its  value)  that  whoever  attempts  to  "filch"  it,  runs  the 
risk  of  a  serious  prosecution. 

The-  penal  sanctions  of  Kafir  law  resolve  themselves  into  the 
general  system  of  pecuniary  fines,  varying  according  to  circum- 
stances from  a  single  head  of  cattle  to  the  entire  confiscation  of 
property.  The  exceptions  to  this  are,  cases  of  assault  on  the  per- 
sons of  wives  of  the  chiefs,  and  what  are  deemed  aggravated  cases 
of  witchcraft.     These  usually  involve  the  punishment  of  death 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  301 

very  summarily  inflicted.  This  punishment,  however,  seldom 
follows  even  murder,  when  committed  without  the  supposed  aid 
of  supernatural  powers;  and  as  banishment,  imprisonment,  and 
corporal  punishment  are  all  unknown  in  Kafir  jurisprudence, 
the  property  of  the  people  constitutes  the  great  fund  out  of  which 
the  debts  of  justice  are  paid. 

The  principle  upon  which  fines  are  levied  is  not  very  rigidly 
defined.  Family  and  personal  influence,  and  favouritism,  have 
much  to  do  with  regulating  the  amount  where  the  decision  is 
given  by  the  chiefs.  In  cases  of  cattle  stealing,  the  law  allows  a 
fine  of  ten  head,  though  but  one  may  have  been  stolen,  provided 
the  animal  has  been  slaughtered,  or  cannot  be  restored.  The 
principle  of  ten  for  one  is  not,  however,  so  applied  as  to  involve 
the  maintenance  of  the  rule  whatever  be  the  number  stolen. 
Though  ten  are  levied  when  one  has  been  stolen,  it  is  not  admitted 
to  follow  that  a  hundred  may  be  demanded  when  ten  have  been 
stolen.  The  circumstances  of  the  case  are  taken  into  considera- 
tion, and  the  decision  varies  accordingly.  And  then  "by  a  fic- 
tion of  law,"  iron  pots,  axes,  and  assagais  are  allowed  to  represent 
cattle ;  so  that  the  man  who  pays  for  his  theft  five  or  six  head  of 
cattle,  and  a  goat  or  tw^o,  making  up  the  number  of  ten  by  the 
addition  of  some  of  the  above  articles,  is  frequently  released  from 
all  farther  legal  claim,  so  far  as  that  case  is  concerned. 

Should  a  delinquent  be  too  poor  to  pay  the  fine  himself,  his 
father,  or  nearest  living  relatives  are  held  responsible,  and  many 
a  grey-headed  parent  has  the  disagreeable  task  of  doing  for  his 
scapegrace  of  a  son  what  his  own  father  in  his  younger  days  had 
to  do  for  him.  Should  neither  the  offender  nor  his  relatives  be 
able  to  satisfy  the  present  claims  of  justice,  the  law  is  so  accommo- 
dating as  to  give  credit ;  and  five,  ten,  or  twenty  years  afterwards, 
if  his  altered  circumstances  render  it  worth  while  to  re-open  the 
case,  it  is  found  carefully  registered  in  the  living  records  kept  in 
the  heads  of  old  councillors. 

When  it  is  ascertained  that  stolen  property  has  been  shared 
by  the  thief  with  others,  the  fiije  imposed  by  law  is  levied  upon  the 
receivers  and  the  thief  in  common,  in  proportion  to  the  amoun^ 
of  plunder  received  by  each  particijjator. 

In  cases  ranked  as  "Criminal,"  that  is,  where  the  chief  himself 
is  the  prosecutor,  the  penalty  very  often  consists  in  being  "  eaten," 
to  use  the  rather  expressive  figure  by  which  entire  confiscation  of 
property  is  implied.  In  some  cases  the  nature  of  the  crime  fully 
warrants  this,  and  would  justify  even  more.     In  others,  a  looker- 


302  RETARDED   PEOPLES  [Part  II. 

on  might  feel  it  a  difficult  niatter  to  find  good  reasons  for  such  pro- 
cedure ;  the  chiefs,  however,  easily  find  reasons  sufficient  to  satisfy 
thevisehes. 

The  course  of  law  in  Kafirland  proceeds  on  a  principle  the  very 
reverse  of  that  which  regulates  English  administration  of  justice. 
We  assume  the  accused  party  innocent  till  his  guilt  is  proved. 
In  Kafirland  he  is  held  guilty  till  he  can  demonstrate  his  inno- 
cence. With  us,  witnesses  must  supply  the  grounds  upon  which 
the  case  is  to  be  decided.  Amongst  the  Kafirs,  the  accused  party 
himself  is  subjected  to  a  most  rigorous  cross-examination,  varied 
and  repeated  at  the  pleasure  of  his  examiners,  and  every  advantage 
is  taken  of  his  mistakes  or  self-contradictions. 

The  conduct  of  a  Kafir  law-suit  through  its  various  stages  is  an 
amusing  scene  to  any  one  who  understands  the  language,  and 
who  marks  the  proceedings  with  a  view  to  elicit  mental  character. 

When  a  man  has  ascertained  that  he  has  sufficient  grounds  to 
enter  an  action  against  another,  his  first  step  is  to  proceed,  with 
a  party  of  his  friends  or  adherents,  armed,  to  the  residence  of  the 
person  against  whom  his  action  lies.  On  their  arrival,  they  sit 
down  together  in  some  conspicuous  position,  and  await  quietly  the 
result  of  their  presence.  As  a  law  party  is  readily  known  by  the 
aspect  and  deportment  of  its  constituents,  its  appearance  at  any 
kraal  is  the  signal  for  mustering  all  the  adult  male  residents  that 
are  forthcoming.  These  accordingly  assemble,  and  also  sit  down 
together,  within  conversing  distance  of  their  generally  unwelcome 
visitors.  The  two  parties  perhaps  survey  each  other  in  silence 
for  some  time.  "Tell  us  the  news !"  at  length  exclaims  one  of  the 
adherents  of  the  defendant,  should  their  patience  fail  first.  An- 
other pause  sometimes  ensues,  during  which  the  party  of  the  plain- 
tiff discuss  in  an  undertone  which  of  their  company  shall  be 
"opening  counsel."  This  decided,  the  "learned  gentleman** 
commences  a  minute  statement  of  the  case,  the  rest  of  the  party 
confining  themselves  to  occasional  suggestions,  which  he  adopts 
or  rejects  at  pleasure.  Sometimes  he  is  allowed  to  proceed  almost 
uninterrupted  to  the  close  of  the  statement,  the  friends  of  the  de- 
fendant listening  with  silent  attention,  and  treasuring  up  in  their 
memories  all  the  points  of  importance  for  a  future  stage  of  the 
proceedings.  Generally,  however,  it  receives  a  thorough  sifting 
from  the  beginning,  every  assertion  of  consequence  being  made 
the  occasion  of  a  most  searching  series  of  cross  questions. 

The  case  thus  fairly  opened,  which  often  occupies  several  hours, 
it  probably  proceeds  no  farther  the  first  day.     The  plaintiff  and 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  303 

his  party  are  told  that  the  "men''  of  the  place  are  from  home; 
that  there  are  none  but  " children"  present,  who  are  not  competent 
to  discuss  such  important  matters.  They  accordingly  retire, 
with  the  tacit  understanding  that  the  case  is  to  be  resumed  the 
next  day. 

During  the  interval,  the  defendant  formally  makes  known  to 
the  men  of  the  neighbouring  kraals  that  an  action  has  been  entered 
against  him,  and  they  are  expected  to  be  present  on  his  behalf  at 
the  resumption  of  the  case.  In  the  meantime,  the  first  day's 
proceedings  having  indicated  the  line  of  argument  adopted  by  the 
plaintiff,  the  plan  of  defence  is  arranged  accordingly.  Information 
is  collected,  arguments  are  suggested,  precedents  sought  for,  able 
debaters  called  in,  and  every  possible  preparation  made  for  the 
battle  of  intellects  that  is  to  be  fought  on  the  following  day. 
The  plaintiff's  party,  usually  reinforced  both  in  mental  and  in 
material  strength,  arrive  the  next  morning  and  take  up  their 
ground  again.  Their  opponents,  now  mustered  in  force,  confront 
them,  seated  on  the  ground,  each  man  with  his  arms  by  his  side. 
The  case  is  resumed  by  some  "advocate  for  the  defendant"  requir- 
ing a  re-statement  of  the  plaintiff's  grounds  of  action.  This  is 
commenced,  perhaps  by  one  who  was  not  even  present  at  the 
previous  day's  proceedings,  but  who  has  been  selected  for  this 
more  difficult  stage  of  the  case  on  account  of  his  debating  abilities. 

"Then  comes  the  tug  of  war."  The  ground  is  disputed  inch 
by  inch;  every  assertion  is  contested,  every  proof  attempted  to 
be  invalidated ;  objection  meets  objection,  and  question  is  opposed 
by  counter  question,  each  disputant  endeavouring,  with  surpris- 
ing adroitness,  to  throw  the  burden  of  answering  on  his  opponent. 
The  Socratic  method  of  debate  appears  in  all  its  perfection,  both 
parties  being  equally  versed  in  it.  The  rival  advocates  warm  as 
they  proceed,  sharpening  each  other's  intellects,  and  kindling  each 
other's  ardour,  till,  from  the  passions  that  seem  enlisted  in  the 
contest,  a  stranger  might  suppose  the  interests  of  the  nation  to  be 
at  stake,  and  dependent  upon  the  decision. 

When  these  combatants  have  spent  their  strength,  or  one  of 
them  is  overcome  in  argument,  others  step  in  to  the  rescue.  The 
battle  is  fought  over  again  on  different  ground ;  some  point,  either 
of  law  or  evidence,  that  had  been  purposely  kept  in  abeyance  being 
now  brought  forward,  and  perhaps  the  entire  aspect  of  the  case 
changed.  The  whole  of  the  second  day  is  frequently  taken  up 
with  this  intellectual  gladiatorship,  and  it  closes  without  any 
other  result  than  an  exhibition  of  the  relative  strength  of  the 


304  RETARDED   PEOPLES  [Part  II. 

opposing  parties.  The  plaintiff's  company  retire  again,  and  the 
defendant  and  his  friends  review  their  own  position.  Should 
they  feel  that  they  have  been  worsted,  and  that  the  case  is  one 
that  cannot  be  successfully  defended,  they  prepare  to  attempt  to 
bring  the  matter  to  a  conclusion  by  an  offer  of  the  smallest  satis- 
faction the  law  allows.  This  is  usually  refused,  in  expectation 
of  an  advance  in  the  offer,  which  takes  place  generally  in  propor- 
tion to  the  defendant's  anxiety  to  prevent  an  appeal.  Should  the 
plaintiff  at  length  accede  to  the  proposed  terms,  they  are  fulfilled, 
and  the  case  is  ended  by  a  formal  declaration  of  acquiescence. 

If,  however,  as  it  frequently  happens,  the  case  involves  a  num- 
ber of  intricate  questions,  that  afford  room  for  quibbling,  the 
debates  are  renewed  day  after  day,  till  the  plaintiff  determines  to 
appeal  to  the  decision  of  the  umpakati,  w^ho  has  charge  of  the 
neighbouring  district.  He  proceeds  with  his  array  of  advocates 
to  his  kraal,  and  the  case  is  re-stated  in  his  presence.  The  defen- 
dant confronts  him,  and  the  whole  affair  is  gone  into  anew  on  an 
enlarged  scale  of  investigation.  The  history  of  the  case,  the  his- 
tory of  the  events  that  led  to  it,  collateral  circumstances,  journeys, 
visits,  conversations,  bargains,  exchanges,  gifts,  promises,  threaten- 
ings,  births,  marriages,  deaths,  that  were  taken,  paid,  made,  given, 
or  occurred  in  connection  with  either  of  the  contending  parties, 
or  their  associates,  or  their  relatives  of  the  present  or  past  genera- 
tion, all  come  under  review,  and  before  the  ''court  of  appeal"  has 
done  with  the  affair,  the  history,  external  and  internal,  of  a  dozen 
families,  for  the  past  ten  years,  is  made  the  subject  of  conflicting 
discussion. 

The  ' '  Resident  Ma^gistrate ' '  decides  the  case,  if  he  can,  after 
perhaps  a  week's  investigation ;  but  if  not,  or  if  either  party  be 
dissatisfied  with  his  decision,  an  appeal  can  still  be  made  to  the 
chief  ''in  council." 

Should  this  final  step  be  resolved  on,  the  appealing  party 
proceeds  to  the  "  Great  Place."  Here,  however,  more  of  form  and 
ceremony  must  be  observed  than  before.  As  soon  as  he  and  his 
company  arrive  within  hearing,  he  shouts  at  the  full  extent  of  his 
voice,  "  Ndimangele ! "  (/  lodge  a  complaint.)  "Umangele  'nto 
nina  ?"  {You  lodge  a  complaint  of  what  f)  is  the  immediate  response, 
equally  loud,  from  whichever  of  the  "men  of  the  Great  Place" 
happens  to  catch  the  sound.  A  shouting  dialogue  commences,  the 
complainants  approaching  all  the  while  till  they  have  reached  the 
usual  position  occupied  on  such  occasions,  a  spot  at  the  respectful 
distance  of  some  fifty  paces  from  the  council  hut.     The  dialogue 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  305 

lasts  as  long  as  the  umpakati  chooses  to  question,  and  then  ceases. 
The  complainants  sit  still.  Bye  and  bye  someone  else  comes  out 
of  the  house  and  sees  the  party.  ''  What  do  you  complain  about  ?  " 
"We  complain  about  so  and  so;''  and  the  case  is  begun  afresh. 
He  listens  and  questions  as  long  as  he  hkes,  and  then  passes  on. 
A  third  happens  to  be  going  by.  The  enquiry  is  repeated,  and 
again  a  statement  of  the  case  is  commenced.  The  umpakati 
wakwomkulu  questions  as  he  goes,  and  without  stopping  con- 
tinues his  interrogations  till  he  is  out  of  hearing.  This  tantalizing 
and  seemingly  contemptuous  procedure  is  repeated  at  the  pleas- 
ure or  caprice  of  any  man  who  chances  to  form  one  of  the  ''court" 
for  the  time  being,  and  it  would  be  "contempt  of  court"  to  refuse 
to  answer.  At  length,  when  it  suits  their  convenience,  the  coun- 
cillors assemble,  and  listen  to  the  complainant's  statement.  The 
opposite  party,  if  he  has  not  come  voluntarily  to  confront  his 
accusers,  is  summoned  by  authority.  On  his  arrival  the  former 
processes  of  statement  and  counter-statement  are  repeated,  sub- 
ject to  the  cross-examining  ordeal  through  which  old  Kafir  lawyers 
know  so  well  how  to  put  a  man.  The  chief  meanwhile  is  perhaps 
lying  stretched  on  a  mat  in  the  midst  of  his  council,  apparently 
asleep,  or  in  a  state  of  dignified  indifference  as  to  what  is  going 
forward.  He  is,  however,  in  reality  as  wide  awake  as  any  present, 
of  which  he  can  generally  give  proof  should  he  see  fit  to  assume  the 
office  of  examiner  himself.  He  sometimes  does  so,  after  having 
listened  to  the  debates  that  have  taken  place  in  his  presence,  and 
then  decides  the  case.  At  other  times  he  forms  his  decision  upon 
the  result  of  the  investigation  conducted  by  his  councillors,  and 
takes  no  part  in  the  case  but  to  pronounce  judgment.  On  this 
being  done,  the  party  in  whose  favour  judgment  is  given  starts 
up,  rushes  to  the  feet  of  the  chief,  kisses  them,  and  in  an  impas- 
sioned oration  extols  the  wisdom  and  justice  of  his  judge  to  the 
skies.  A  party  from  the  "Great  Place"  is  sent  with  him  to  en- 
force the  decision,  and  bring  back  the  chiefs  share  of  the  fine  imposed, 
and  the  affair  is  at  an  end. 


3.  MARRIAGE   CUSTOMS 

Amongst  the  national  u^«p;p«  nf  th^  TTafirg^  gg  amn]^gr^t  those  o£ 

other  tribes  and  nations,  the  customs  connected  with  Marriage 

rank  first  in  importance,  as  influencirig  thp  entire  snriaLconditioq. 

of  thejeople.     Some  account  of  these  will  form  the  subject  of  the 

resent  article. 


306  RETARDED  PEOPLES  [Part  II. 

PolygamxJs-«fiiversally  allowed  throughout  all  the  tribes,  nor 
is  there  any  legal  limit  to  the  number  of  wives  a  man  may  take. 
The  actual  number  generally  bears  some  proportion  to  the  wealth 
of  the  husband;  not,  perhaps,  so  much  from  its  regulating  his 
desire  to  increase  it,  as  from  its  determining  the  inclinations  of 
those  who  have  marriageable  daughters  to  dispose  of;  for  as  the 
refusal  of  a  proffered  bride  is  regarded  as  an  insult  to  her  family, 
to  reject  one  when  sent  would  often  involve  the  party  doing  so  in 
considerable  trouble,  and  might,  indeed  certainly  would,  in  some 
cases,  expose  him  to  the  danger  of  seeing  his  cattle  swept  off  to 
wipe  away  the  affront.  On  the  principle,  therefore,  ''of  two 
evils  to  choose  the  least,"  an  old  man  sometimes  consents  to  take 
another  and  a  young  wife,  when  his  inclinations  would  lead  him 
to  demur.  For  in  Kafirland  at  least,  such  an  enlargement  of  the 
domestic  establishment  by  no  means  guarantees  an  increase  of 
domestic  happiness.  The  jealousies  and  rivalries  of  the  spousal 
''sisters,"  as  they  designate  each  other;  and  the  still  greater  evils 
flowing  in  such  a  state  of  society  from  such  unnatural  associations, 
often  prove  the  plague  of  the  husband's  life,  and  frequently  result 
in  the  dismissal  or  abandonment  of  such  of  his  wives  as  cause  him 
the  greatest  annoyance.  The  average  number  of  wives  to  each 
married  man  amongst  the  common  people  is  about  three.  Some 
of  the  rich  amapakati  are  known  to  have  as  many  as  ten,  and  some 
of  the  chiefs  twice  that  number. 

ConcubinageJs_also-allowed,  and  amongst  the  chiefs  exists  to 
a  considerable  extent.  Their  concubines  are  usually  women 
selected  from  amongst  their  own  people,  who  have  become  objects 
of  attraction  to  their  rulers,  but  whose  parents  are  not  of  sufficient 
consideration  to  demand  on  their  behalf  the  more  honourable 
rank  of  wives.  It  is,  however,  by  no  means  uncommon  for  a  chief 
to  raise  a  favourite  concubine  to  that  rank,  after  some  years' 
cohabitation.  Amongst  the  common  people,  concubines  consist 
of  two  classes,  the  voluntary,  and  the  bestowed.  The  former 
are  those  who  have  become  such  by  personal  consent,  and  arrange- 
ment with  the  relatives  in  whose  guardianship  they  are.  The 
latter  are  such  as  the  chiefs  have  authoritatively  allotted  to  the 
young  men  of  their  retinue,  who  have  acquired  their  special  favour 
during  their  term  of  service  at  the  "Great  Place" ;  and  who  have 
therefore  obtained  permission  to  select  female  companions  from 
amongst  their  acquaintance,  without  incurring  the  expense  of  the 
marriage  dowry.  As  concubines  have  a  legal  standing,  their 
offspring  are  not  considered  illegitimate.     They  rank,  however, 


Chap.  XI,  §  1.]  KAFIR   LAWS  AND   CUSTOMS  307 

inferior  to  the  children  of  the  ''married  wives'^;  nor  can  they 
inherit,  except  in  default  of  male  issue  on  the  part  of  the  latter. 

In  a  preceding  article,  an  account  is  given  of  the  peculiarity  in 
the  law  of  inheritance,  which  arises  from  the  investiture  of  certain 
of  the  wives  of  the  chiefs  with  a  rank  above  the  rest.  The  same 
custom  obtains  throughout  all  the  grades  of  Kafir  society.  The 
''great  wife,"  the  "wife  of  the  right  hand,"  and  the  representative 
of  "the  house  of  the  father,"  are  found  amongst  all  classes,  should 
the  husband  have  as  many  as  three  wives ;  and  should  they  exceed 
that  number,  the  children  of  the  rest  have  no  claim  on  their  father's 
property  beyond  the  portions  given  to  them  by  their  father  him- 
self during  his  lifetime. 

The  younger  sons  of  a  family  are  not  competent  to  Daa£rvwhile  .J,^^^^*. 
their  elder  brother  remains  single.  The  order  of  semorityisnot,^^**^ 
however,  observed  any  farther.  The  firstborn  once  "settled  in 
life,"  the  rest  may  follow,  as  inclination  and  circumstances  lead. 
The  origin  of  this  custom  is  probably  to  be  found  in  the  priority 
of  claim  which  the  eldest  son,  in  virtue  of  his  primogeniture,  is 
deemed  to  have  upon  his  father's  aid  in  providing  a  dowry. 

The  business  of  negotiation  in  matrimonial  affairs  differs  accord- 
ingly as  the  proposal  comes  from  the  representatives  of  the  bride, 
or  from  those  of  the  bridegroom.  A  man  sometimes  fixes  his 
desire  upon  a  young  woman,  and  at  once  proposes  to  her  guar- 
dians that  she  shall  be  sent  to  his  residence  in  the  ordinary  manner. 
If  his  proposal  be  accepted,  it  serves  to  cut  short  some  part  of  the 
ceremonies  afterwards  to  be  described. 

It  is  sometimes  the  case,  also,  that  two  young  men  select  as  the 
object  of  their  choice  the  same  young  woman.  They  commence 
a  course  of  rival  bidding  for  the  father's  consent,  and  the  daughter's 
affections.  The  cattle  of  the  respective  candidates  are  sent  to 
the  father  of  the  object  of  their  rivalry  by  one  or  two  at  a  time,  as 
may  be  necessary  in  each  case  to  advance  a  step  beyond  the  oppo- 
site side.  When  the  highest  bidder  has  reached  his  maximum, 
the  cattle  of  both  are  surveyed  together,  and  the  lady  is  called 
upon  to  declare  her  own  choice  of  the  candidates  themselves.  If 
this  should  happen  to  coincide  with  that  of  her  parents  with  re- 
spect to  the  cattle,  so  much  the  better.  If  not,  a  contest  commences 
of  persuasion  versus  authority.  It  sometimes  occurs  that  the  en- 
treaties of  the  daughter  prevail  over  the  avarice  of  the  father, 
but  such  cases,  the  Kafirs  admit,  are  rare.  Kafir  fathers  have. 
for  the  most^rt  their  full  sharp  nf  thnse  principles  of  hunian  ^ 
nature  which  in  more  enlwhtenedcountnes  lead  parents  to  sacrifice"^ 


308  RETARDED   PEOPLES  [Part  II. 

the  ''foolish''  inclinations  of  their  children  at  a  golden  shrine; 
and  accordingly  the  highest  bidder  usually  gains  the  prize.  The 
cattle  of  the  unsuccessful  candidate  are  then  driven  hy  the  fair  one 
herself  J  arrayed  in  her  best  ornaments,  to  the  home  of  their  owner, 
and  left  in  his  kraal.  This  is  the  couj)  de  grace  of  rejection,  and  is 
a  piece  of  refinement  in  punishing  a  stingy  suitor,  worthy  the  notice 
of  the  under-valued  ladies  of  more  civilized  nations. 

Such  cases  as  the  above  often  occur.  In  the  ordinaxj*  course 
of  things,  however,  negotiations  are  begun  by  the  lather  of  the 
bride,  and  especially  so,  if  she  be  a  person  of  rank.  The  process 
is  frequently  a  very  lengthy  one.  A  husband  having  been  fixed 
on,  the  first  step  is  to  send  a  person  by  night  to  his  residence,  with 
an  introductory  present  called  umlomo,  or  "the  mouth."  This 
present,  consisting  of  ornaments,  such  as  beads,  or  brass  wire  for 
bracelets,  must  be  left  secretly,  as  otherwise  etiquette  would  re- 
quire its  being  returned.  Whether  or  no  this  custom  has  had  its 
origin  in  the  excessive  bashfulness  of  the  men  does  not  appear. 
The  discovery  of  the  ''mouth,"  after  its  bearer  is  gone,  is  fre- 
quently the  first  intimation  of  a  proposed  matrimonial  alliance, 
and  it  may  still  be  unknown  from  what  quarter  the  proposal 
comes.  Sometimes  the  requisite  information  is  left  in  the  neigh- 
bourhood. At  other  times,  where  more  caution  is  required,  a  visi- 
tor, or  rather  a  passer  by,  calls  the  next  day,  quite  accidentally, 
it  should  appear.  In  the  course  of  "telling  the  news,"  in  com- 
pliance with  the  universal  requisition  made  upon  strangers,  he 
mentions  cursorily  that  he  happened  to  hear  so  and  so  drop  some 
hints  of  an  intention  to  send  his  daughter  to  be  married  in  the 
neighbourhood.  Of  course  he  happens  also  to  know  something 
of  the  lady  herself  as  of  her  family,  and  can  give  some  information 
respecting  her  personal  attractions,  and  other  good  qualities.  He 
may  even  be  gallant  enough  to  advocate  her  cause,  although  of 
course,  quite  disinterested.  From  the  character  of  the  conversa- 
tion that  follows,  he  is  soon  able  to  gather  in  what  way  these  first 
advances  are  received,  and  what  are  the  probabilities  of  a  prosper- 
ous issue  to  the  negotiation.  If  the  ambition  of  the  lady's  friends 
should  have  led  them  to  aim  at  too  high  a  mark,  (for  family  pride 
is  by  no  means  too  refined  a  feeling  for  a  barbarian  breast),  or  if 
other  circumstances  should  determine  the  selected  party  to  decline 
the  alliance,  the  ''mouth"  is  sent  back  to  tell  its  owner  of  her 
rejection.  If,  on  the  contrary,  either  the  desires  or  the  fears  of 
the  bridegroom  elect  induce  him  to  regard  it  favourably,  the  way 
is  open  for  the  next  step  in  this  interesting  and  important  business. 


Chap.  XI,  §1.]  KAFIR   LAWS  AND   CUSTOMS  309 

It  should  not  pass  unremarked,  that  when  the  proposed  bride 
is  a  chief's  daughter,  the  introductory  present  is  not  left  secretly, 
but  dropped  in  the  presence  of  those  to  whom  it  is  sent.  They 
instantly  endeavour  to  seize  the  bearer,  who  takes  to  his  heels, 
pursued  by  all  the  young  men  of  the  place.  Should  he  outstrip 
them,  and  escape  capture,  his  credit  is  saved.  But  if  he  is  caught, 
his  hands  are  tied  behind  him,  the  present  bound  to  his  back,  and 
himself  sent  home  to  become  the  laughing  stock  of  his  associates, 
of  whom  the  female  portion  are  not  the  least  severe,  upon  his 
failure.  The  ''mouth"  is  then  entrusted  to  the  care  of  some  light- 
footed  messenger,  while  the  former  one  bears  his  disgrace  as  he  can. 

The  next  step  in  the  process  is  the  arrival,  at  the  kraal  of  the 
bridegroom  elect,  of  two  or  three  persons,  usually  women.  These 
also  arrive  in  the  night.  They  seat  themselves  near  one  of  the 
huts  in  the  open  air  in  silence,  and  remain  there  till  discovered  by 
some  of  the  people  of  the  place.  On  being  questioned,  they  give 
some  fictitious  account  of  themselves.  On  being  invited  to  lodge 
for  the  night,  they  decline.  This  is  the  intimation  that  they 
form  the  party  sent  to  hlolela  or  "spy  for"  the  bride.  A  hut  is 
then  appropriated  to  their  use,  and  they  there  await  the  result  of 
this  second  step.  Weeks  sometimes  elapse,  during  which  they 
have  little  or  no  intercourse  with  the  people  of  the  place,  farther 
than  is  necessary  to  obtain  food.  Now  and  then,  one  of  the  party 
pays  a  visit  home  to  report  progress.  She  must  not,  however,  be 
seen  to  depart,  nor  to  arrive  on  her  return.  In  the  mean  time  the 
men  of  the  place  have  resolved  themselves,  assisted  by  their  neigh- 
bours, into  a  "committee  of  ways  and  means,"  on  the  subject  of 
the  dowry.  When  this  important  matter  has  been  fully  discussed, 
the  "spies"  are  informed  that  the  bride  may  come.  This  infor- 
mation being  transmitted,  the  uduli,  or  bridal  party,  makes  its 
appearance,  consisting  of  the  bride  herself,  a  number  of  young 
female  companions,  the  representatives  of  her  father  or  guardians, 
and  some  young  men  as  attendants  or  messengers.  The  party 
takes  possession  of  the  hut  occupied  by  the  ''spies."  In  due  time 
the  master  of  the  kraal  sends  word  that  the  bride  is  to  present 
herself  ''to  be  seen."  She  accordingly  proceeds  with  one  or  two 
of  her  companions  to  where  the  men  are  assembled.  She  kneels 
before  them  at  a  short  distance,  uncovered  from  the  waist  upwards, 
while  her  defects  or  beauties  of  person  are  freely  criticised.  When 
this  is  over,  she  retires,  leaving  behind  her  a  present  of  beads  or 
buttons.  She  is  afterwards  called  for  by  the  women,  and  a  similar 
ordeal  is  endured,  another  present  being  left  on  retiring.     In  the 


310  RETARDED   PEOPLES  [Part  II. 

meantime  the  dowry  negotiation  is  going  forwards  between  the 
representatives  of  the  two  parties ;  the  demands  of  the  one,  and 
the  statement  of  difficulties  by  the  other,  occupying  a  considerable 
time.  At  length  the  men  of  the  bridal  party  are  summoned  to 
the  cattle  kraal.  An  ox  is  caught  in  their  presence.  They  look 
on  in  silence  and  retire.  The  animal  is  slaughtered,  and  the  meat 
sent  to  them.  This  is  the  ratification  of  the  contract,  and  the 
signal  for  the  marriage  festivities  to  commence.  The  presents 
of  the  father  of  the  bride  to  his  son-in-law  are  produced.  These 
are,  one  head  of  cattle  for  a  kaross,  another,  the  hair  of  the  tail  of 
which  is  to  be  worn  round  his  neck  as  a  charm,  and,  if  the  bride 
be  a  person  of  rank,  a  number  of  cows  to  furnish  a  milksack  and 
its  contents  for  his  sustenance.  The  number  of  the  latter  varies 
from  two  or  three  to  ten,  according  to  the  wealth  or  ostentation 
of  the  party  who  sends  them.  The  neighbours  are  invited  to  the 
wedding,  and  the  dancing  and  feasting  begin.  These  festivities 
usually  last  three  days  among  the  "commonalty."  When  a  chief 
of  rank  is  married  they  continue  eight  or  ten  days.  On  the  last 
day,  when  the  sun  is  declining,  the  ox  races  are  held.  While  the 
youth  and  more  fiery  of  the  elder  guests  are  absent  at  this  sport, 
the  ukutshata  takes  place.  This  is  the  great  ceremonial  of  the 
occasion,  but  strikingly  characteristic  of  the  barbarism  of  the 
people.  The  bride,  and  two  of  her  companions  as  supporters, 
walk  in  procession.  Their  only  clothing  consists  of  the  skins  of 
the  oribie,  tied  round  the  loins.  Their  heads  are  bare,  and  their 
bodies  covered  with  light  red  ochre,  which  presents  the  more 
remarkable  appearance  from  the  bright  yellow  of  the  oribie  skins. 
They  proceed  arm  in  arm,  "with  solemn  steps  and  slow,"  towards 
the  gate  of  the  cattle  kraal,  the  bride  carrying  in  her  hand  a  single 
assagai.  Their  air  is  that  of  victims  about  to  be  offered  in  sacrifice, 
for  which  they  would  certainly  be  taken  by  any  one  ignorant  of 
the  customs  of  the  country.  As  they  proceed  on  their  way,  one 
of  the  male  attendants  removes  any  sticks  or  stones  that  may 
chance  to  lie  in  the  path.  On  reaching  the  kraal  gate,  the  bride 
throws  the  assagai  within  it,  and  leaves  it  there.  The  procession 
then  moves  towards  where  the  men  are  assembled,  the  women  of 
the  place  preceding  the  bride,  and  imitating  in  dumb  show  her 
future  duties,  such  as  carrying  wood  and  water,  and  cultivating 
the  ground.  On  reaching  the  assembly  of  the  men,  the  procession 
halts,  and  the  bride  is  lectured  on  her  future  conduct  by  any  one 
of  them  who  chooses.  There  is  no  deficiency  of  coarse  brutality 
of  remark  in  this  part  of  the  ceremony,  which  continues  as  long 


Chap.  XI,  §1.]  KAFIR   LAWS  AND   CUSTOMS  311 

as  the  lecturers  please,  the  bride  standing  before  them  in  perfect 
silence.  It  is,  however,  the  finale  of  the  ceremony.  On  receiving 
permission  to  retire,  the  procession  returns  to  the  place  from  which 
it  set  out,  the  guests  depart,  the  bride  takes  possession  of  a  new 
hut  that  has  been  erected  for  her,  and  assumes  her  assigned  position 
in  the  domestic  establishment  of  her  new  "lord  and  master.'* 

The  number  of  guests  present  at  these  festivities  is  sometimes 
very  great.  At  the  marriage  of  chiefs  of  high  rank,  they  amount 
to  thousands.  On  such  occasions  the  greater  portion  of  the  tribe 
assembles,  and  all  the  other  chiefs  within  one  or  two  days'  journey 
are  expected  either  to  attend  in  person,  or  send  their  racing  oxen. 
To  neglect  to  do  either  would  be  considered  an  affront.  The  bride- 
groom and  his  friends  provide  the  slaughter  cattle  for  the  feast; 
but  the  guests  bring  their  own  milch  cows  and  milksacks.  From 
four  or  five  to  fifty  head  of  cattle  are  slaughtered,  according  to 
the  wealth  and  rank  of  the  parties. 

Such  is  the  marriage  ceremonial  in  the  "respectable  circles  "  of 
Kafir  society.  There  is  also  an  abridged  form,  in  which  the 
ukutshata  and  the  ox  racing  are  omitted,  and  the  feasting  and 
dancing  much  curtailed.  This,  however,  is  considered  a  discredi- 
table mode  of  getting  married,  and  is  therefore  chiefly  confined  to 
the  poorest  of  the  people. 

There  is  another  custom  connected  with  the  marriage  of  chiefs, 
or  rather  supplementary  to  it,  very  characteristic  of  the  people; 
but  which,  like  several  others,  is  falling  into  disuse  among  the 
frontier  tribes.  At  the  close  of  the  first  year  of  marriage,  the  male 
relatives  of  the  bride  muster  and  form  a  party  to  go  and  pay  the 
congratulatory  visit.  On  their  coming  in  sight,  however,  a  rival 
muster  takes  place  of  the  friends  and  retainers  of  the  husband,  who 
go  out  to  resist  the  advance  of  the  other  party.  The  result  is  a 
cudgel  match  on  a  large  scale,  from  pure  friendliness,  of  course, 
but  which  nevertheless  does  not  prevent  heads  and  limbs  from 
being  broken.  Should  the  friends  of  the  bride  drive  the  other 
party  off  the  ground,  the  welcoming  present  of  cattle  made  by  the 
husband  is  expected  to  be  so  much  the  larger ;  but  if  the  opposite 
side  win  the  day,  the  demands  of  the  congratulators  are  propor- 
tionately lessened. 

The  general  Eastern  j:ustom_ofjpaying  a  dowry,  or  marriage 
price,  for  their  wives,  obtain3J.lnuugli(JLirilii!  Kafir  tribes.  Callle, 
the  number  varying  according  to  the  rank  of  the  bride,  from  ten 
to  a  hundred  head,  constitute  this  dowry ;  and  the  desire  of  ob- 
taining as  many  cattle  as  possible,  usually  leads  her  father  or  other 


312  RETARDED   PEOPLES  [Part  II. 

guardians  to  send  her  to  the  richest  man  their  own  rank  will  war- 
rant, without  any  regard  to  her  own  inclinations,  or  the  age,  dis- 
position, or  domestic  circumstances  of  her  intended  husband.  As 
this  custom  has  been  considered  to  reduce  the  wife  to  a  mere  article 
of  merchandise,  it  has  been  condemned  in  strong  terms,  on  the 
ground  of  its  degrading  influence.  It  must  be  acknowledged  that 
although  the  principle  of  the  usage  has  the  sanction  of  patriarchal 
antiquity,  and  is  mentioned,  without  prohibition,  in  the  Old  Testa- 
ment, its  circumstantials,  as  existing  amongst  the  Kafir  tribes, 
partake  of  the  grossness  to  be  expected  in  a  barbarous  state  of 
society.  It  is  but  fair,  however,  that  the  whole  case  should  be 
exhibited.  The  transaction  is  not  a  mere  purchase.  The  cattle 
paid  for  the  bride  are  divided  amongst  her  male  relations,  and  are 
considered  by  the  law  to  be  held  in  trust  for  the  benefit  of  herself 
and  children,  should  she  be  left  a  widow.  She  can  accordingly 
legally  demand  assistance  from  any  of  those  who  have  partaken 
of  her  dowry;  and  her  children  can  apply  to  them  on  the  same 
ground  for  something  to  "begin  the  world  with."  Nor  can  the 
husband  ill-treat  her  with  impunity.  On  experiencing  any  real 
grievance,  she  can  claim  an  asylum  with  her  father  again,  till  her 
husband  has  made  such  atonement  as  the  case  deniands.  Nor 
would  many  European  husbands  like  to  be  subjected  to  the  usual 
discipline  on  such  occasions.  The  offending  husband  must  go  in 
person  to  ask  for  his  wife.  He  is  instantly  surrounded  by  the 
women  of  the  place,  who  cover  him  at  once  with  reproaches  and 
blows.  Their  nails  and  fists  may  be  used  with  impunity,  for  it 
is  the  day  of  female  vengeance,  and  the  belaboured  delinquent  is 
not  allowed  to  resist.  He  is  not  permitted  to  see  his  wife,  but  is 
sent  home,  with  an  intimation  of  what  cattle  are  expected  from 
him,  which  he  must  send  before  he  can  demand  his  wife  again. 
And  this  process,  should  it  be  necessary,  may  be  repeated  over  and 
over  again,  to  be  closed,  in  incorrigible  cases  (should  the  woman 
have  borne  any  children),  by  the  father's  finally  detaining  his 
daughter  and  her  dowry  together.  So  that  the  husband  may  at 
last  lose  both  wife  and  cattle. 


Chap.  XI,  §  2.]  KAFIR   LAWS  AND   CUSTOMS  313 

Section  2 
TAMBOOKIE  USAGES '  ^ 
PRELIMINARY.  REMARKS 

For  convenience,  Iia£r  laws  may  perhaps  be  divided  into 
criminal  and  cixiL  as  with  us ;  but  then  the  cases  classed  under 
these  two  heads,  will  be  a  very  different  classification  from  ours. 

Criminal  cases  will  comprise  such  only  as  are  prosecuted  by 
the  chiefs  themselves,  and  the  fines  for  which  are  claimed  by 
them  as  their  inalienable  right ;  and  which  fines  are  denominated 
Isizi.  Such  cases  are  probably  all  included  under  the  heads  of 
national  offences,  all  crimes  of  a  political  nature,  breaches  of  the 
peace,  charges  of  sorcery,  etc.,  and  crimes  against  the  persons  of 
individuals. 

All  other  cases  will  come  under  the  head  of  civil  cases.  These 
are  prosecuted  by  the  plaintiffs,  and  the  fines,  or  compensation, 
are  always  awarded  to,  and  claimed  of  right  by  them ;  and  the 
chiefs  have  no  right  or  claim  to  any  part  thereof.  But  if  the 
plaintiff  obtains  judgment  in  his  favour,  he  has  to  pay  the  Imi- 
Mla,  or  sheriffs,  employed  to  execute  the  sentence  of  the  court, 
out  of  the  fines  awarded  to  him ;  and  which  demand  generally 
amounts  to  about  one-third  of  the  value  of  the  fine.  If  judgment 
is  given  in  favour  of  the  defendant,  there  are  no  law  expenses  to 
pay,  because  there  being  no  sentence  to  enforce,  there  is  no  occa- 
sion to  employ  sheriffs.  The  decision  of  the  court  is  then  simply, 
^'no  case." 

Kafir  law,  strictly  speaking,  recognises  no  other  punishment 
than  that  of  fine  or  compensation.  "Eating  up,"  and  putting 
individuals  to  death  for  imaginary  crimes,  such  as  sorcery,  etc., 
are  mere  arbitrary  acts  of  the  chiefs.  "Eating  up"  is  however 
absolutely  necessary,  when  a  kraal  or  clan  resists  the  sentence  or 
orders  of  the  chief,  as  he  has  no  other  means  of  upholding  his 
authority  and  enforcing,  the  law.  [The  grand  principle  of  Kafir, 
law  is  collective  responsibility;  and  on  this  principle  depends  in 
a  very  great  degree,  the  peace  and  safety  of  society.  Do  away 
with  this,  while  the  Kafirs  still  continue  in  their  present  clannish 
and  barbarous  state,  and  they  would  immediately  become  unman- 

1  [Reprinted  from  "A  Compendium  of  Kafir  Laws  and  Customs." 
The  present  selection  is  from  the  notes  of  Mr.  Warner,  dated  Tambookie 
residency,  December  1st,  1856.] 


314  RETARDED   PEOPLES  [Part  II. 

ageable.  Every  clan  is  collectively  responsible  to  the  paramount 
chief,  and  every  kraal  is  answerable  for  each  member  thereof. 

The  proof  of  innocence  rests  in  much  greater  degree  with  the 
accused  than  is  the  case  with  us ;  evidence  of  guilt  being  far  more 
difficult  to  procure;  for  the  idea  of  a  Kafir  informing  or  giving 
evidence  against  his  neighbour,  or  one  of  his  own  kraal,  is  out  of 
the  question,  —  unless  it  becomes  necessary  for  him  to  do  so,  in 
order  to  clear  himself,  a  friend,  or  the  "umpakati"  whose  retainer 
he  may  be ;   neither  is  there  any  law  to  force  him  to  do  so. 

Defendant,  plaintiff,  and  witnesses  are  allowed  to  tell  as  many 
lies  as  they  like,  in  order  to  make  the  best  of  their  case ;  they  have 
no_JLldina1  o^th^^and  there  is  consequently  no  punishment  for 
perj  ur;;^^^^^nditisin  cross  examination,  and  in  sifting  out  the  truth 
from  such  a  mass  of  lies  and  misrepresentation,  that  the  ability 
and  cleverness  of  Kafir  lawyers  shine  forth. 

Plaintiff  and  defendant  are  allowed  to  state  their  case  in  their 
own  way,  and  to  produce  any  kind  of  evidence ;  and  the  court  has 
the  right  to  cross  examine  in  any  manner  it  may  think  proper,  and 
to  put  whatever  leading  questions  it  chooses.  In  fact,  any  thing- 
is  justifiable  which  is  done  by  the  court  with  the  aim  of  eliciting 
the  truth ;  and  any  thing  isTusFifiable  on  the  parts  of  the  plaintiff 
and  defendant,  which  may  be  done  by  them  with  a  view  to  the 
bettering  of  their  case. 

The  parties  concerned,  have  the  right  to  compromise  any  civil 
case,  without  bringing  it  before  either  the  "Amapakati,"  or  the 
chief;  but  they  have  no  right  to  compound  for  criminal  cases, 
as  that  would  be  robbing  the  chief  of  part  of  his  revenue.  Civil 
cases  may  be  adjudicated  by  any  "Umpakati,"  if  the  parties 
agree  to  lay  the  case  before  one ;  but  there  is  an  appeal  from  such 
decision  to  the  chief,  and  no  court  of  "  Amapakati"  has  the  power 
to  use  force  to  carry  out  its  sentence,  without  permission  from  the 
chief.  The  "  Amapakati,"  however,  often  levy  the  fine  for  assault 
(which  is  a  criminal  case)  and  retain  it  for  their  own  benefit, 
but  this  is  not  legal,  and  the  chief  can,  at  any  time,  demand  it  to 
be  given  up  to  him. 

Kafir  law  is  chiefly^Jarwnf  precedents ;  (for  although  the  reign- 
ing chief  has  the  power  to  make  new  laws,  he  seldom  exercises  this 
prerogative) ;  and  there  appears  to  be  no  uncertainty  whatever 
in  its  administration.  It  is  very  defective  in  many  respects  ;  yet 
on  the  whole  it  is  well  suited  to  the  present  state  and  circumstances 
of  the  Kafir  tribes.  And  although  it  is  very  desirable  that  it 
should  be  superseded  by  the  introduction  of  a  modified  form  of 


Chap.  XI,  §2.]  KAFIR   LAWS  AND   CUSTOMS  315 

our  superior  laws ;  yet  this  must  be  a  work  of  time,  and  can  only 
be  accomplished  by  degrees,  and  as  the  people  progress  in  civiliza- 
tion. The  greatest  defect  of  Kafir  law  is,  that  it  is  administered 
by  the  same  parties  who  have  the  power  to  make  new  laws  or  alter 
the  old  ones,  viz.  the  chiefs. 

The  laws,  however,  connected  with  their  system  of  superstition, 
as  well  as  many  of  their  social  and  domestic  customs,  are  highly 
injurious,  subversive  of  morality,  and  entirely  inimical  to  Chris- 
tianity and  civilization ;  and  every  effort,  consistent  with  main- 
taining the  peace  and  tranquillity  of  the  country,  ought  to  be  made 
for  their  gradual  abolition. 

In  conclusion  I  may  remark  that  there  may  be  slight  variations 
in  its  details  and  administration  among  the  different  tribes ;  and 
that  my  notes  and  compendium  are  in  accordance  with  Tambookie 
usages.  Kafir  law  is  however  substantially  the  same  among  all 
the  Amaxosa  tribes. 

1.   CRIMINAL  CASES 
a.    HOMICIDE 

Kafir  law  seems  to  make  littlp  r>r  y\n  dktinptinn  hpfween  wilful 

TT|iirHer  and-a^y  nthrr  k-iiul   nf  hnmioirlft;     unless  it  be,  perhaps, 

that  in  purely  accidental  homicide,  the  full  amount  of  the  fine 
may  not  be  so  rigidly  insisted  upon.  All  homicide  must  however 
be  atoned  for;  the  principle  assumed  being,  that  the  persons  of 
individuals  are  the  property  of  the  chief,  and  that  having  been 
deprived  of  the  life  of  a  subject,  he  must  be  compensated  for  it. 
The  fine  for  a  male  is  seven  head  of  cattle,  and  for  a  female  ten 
head  ;  the  life  of  a  female  being  more  valuable  than  that  of  a  male, 
on  account  of  the  dowry  obtained  for  her  at  her  marriage. 

Compensation  for  all  kinds  of  homicide  is  so  universally  insisted 
upon,  that  should  even  an  "Igqwira,"  or  person  charged  with  the 
crime  of  sorcery,  die  under  the  torture  to  which  he  is  always 
subjected,  or  be  killed,  without  the  sanction  of  the  chief,  the 
"Isizi,"  or  atonement,  must  be  paid,  unless  the  chief  thinks  proper 
to  forego  his  claim,  and  which  he  sometimes  does  in  such  cases. 
The  case  is  not  altered  in  "faction  fights,"  where  for  each  individ- 
ual who  may  be  killed,  the  fine  is  inflicted  upon  all  the  parties 
engaged ;  unless  such  fight  was  authorized  by  the  paramount 
chief  himself.  And  even  in  death  occurring  from  natural  causes, 
unless  the  chief  is  formally  made  acquainted  therewith,  imme- 
diately on  such  an  event  happening,  the  "Isizi"  can  be  demanded. 


316  RETARDED  PEOPLES  [Part  II. 

This  kind  of  law  does  not  at  all  accord  with  our  ideas  of  justice  : 
and  it  is  one  of  the  most  defective  parts  of  Kafir  law.  And  yet, 
its  practical  working  must  be  good,  for  the  Kafirs  are  the  opposite 
of  bloodthirsty ;  as  the  shedding  of  blood,  except  in  times  of  war, 
is  a  rare  occurrence  among  them. 

b.    ASSAULT 

Under  this  head  will  be  included  every  kind  of  bodily  injury  less 
than  death,  inflicted  by  one  individual  upon  another,  from  the 
most  severe,  down  to  a  single  blow  with  a  stick.  Nothing  seems 
to  justify  one  man  striking  another,  not  even  in  self  defence; 
and  both  parties  are  generally  fined,  unless  it  be  clearly  proved  that 
the  assault  was  all  on  one  side.  The  fine  is  from  one  to  five  or  six 
head  of  cattle. 

C.    RAPE 

This  is  a  crime;  but  it  must  be  clearly  proved,  and  then  the 
fine  is  not  more  than  from  one  to  three  or  four  head  of  cattle. 

d.    ABORTION      t^^ 

The  procuring  of  abortion,  although  almost  universallv  prac- 
tised by  all  classes  of  females  in  Kafir  society,  is  nevertheless  a 
crime  of  considprahle  piagnitiide  in  the  eye  of  the  law ;  and  when 
brought  to  the  notice  of  the  chief,  a  fine  of  four  or  five  head  of 
cattle  is  inflicted.  The  accomplices  are  equally  guilty  with  the 
female  herself. 

e.    UNNATURAL    CRIMES 

These  are  almost  entirely  unknown.  Indeed  during  a  residence 
of  twenty-five  years  among  the  Tambookies,  I  have  only  heard  of 
one  case  of  the  kind.  This  was  a  case  of  sodomy.  I  think  the 
fine  was  five  head  of  cattle.  It  was  considered  a  criminal  case, 
and  the  fine  was  accordingly  claimed  by  the  chief. 

/.    INCEST 

Misdemeanours  which  would  come  under  this  head  with  us,  are 
not  punishable  by  Kafir  laws ;  but  they  have  a  far  more  powerful 
preventative  in  their  superstitious  fears,  which  teach  them  to  dread 
that  some  supernatural  evil  will  befall  the  parties  committing  such 
acts ;  they  lose  caste  as  it  were,  and  are  considered  in  the  light  of 
sorcerers :  hence  such  crimes  are  seldom  committed. 


Chap.  XI,  §2.]  KAFIR   LAWS  AND   CUSTOMS  317 

Consanguineous  marriages  are,,  prohibited  by  custom  rather 
than  by  law;  and  if  the  parties  are  not  too  nearly  related,  and 
resolutely  persist  in  their  determination  to  marry,  and  if  the  man 
is  prepared  to  pay  pretty  dearly  for  his  wife,  they  generally  succeed 
in  gaining  their  point.     Such  cases  are  however  very  infrequent. 

Relationship  by  affinity  merely,  and  not  by  hlood,  presents  no 
obstacle  to  marriage,  and  a  man  may  even  marry  two  sisters  at 
the  same  time. 

2.  CIVIL  CASES     '^ 

a,    ADULTERY 

This  is  a  crime  against  the  property  of  the  husband,  and  is,  as 
with  us,  a  civil  case.  The  fine  is  from  one  to  three  or  four  head 
of  cattle,  according  to  the  rank  of  the  husband. 

If  pregnancy  be  proved  to  have  resulted  from  such  illicit  connec- 
tion, the  fine  is  from  seven  to  ten  head. 

The  child  in  such  cases  belongs  to  the  husband,  who,  after  receiv- 
ing the  fine,  is  bound  to  provide  for  it.  Adultery  is  onlv  a  crime 
when  committed  bv  the  wife.  The  husband  has  the  right  to 
cohabit  with  as  many  women  as  he  thinks  proper ;  provided  they 
are  not  the  wives  of  other  men.  A  man  seldom  or  never  divorces 
his  wife  for  this  crime. 

6.    SEDUCTION    OF    VIRGINS 

Seduction  of  virgins,  and  cohabiting  with  unmarried  women 
and  widows,  are  not  punishable  by  Kafir  law,  neither  does  any 
disgrace  attach  to  either  sex  by  committing  such  acts.  Indeed 
they  have  no  name  for  virgin  in  their  language,  and  when  a  girl 
arrives  at  the  state  of  puberty,  the  tact  is  announced  by  a  public 
festival.  .  .  .  This  promiscuous  intercourse  of  the  sexes  is  however 
subject  to  certain  rules  and  customs ;  but  even  when  committed 
in  a  clandestine  manner  it  is  not  punishable;  nor,  as  I  before 
stated,  does  any  disgrace  attach  to  the  parties  concerned. 

If  however  pregnancy  ensues,  the  father  or  guardian  of  the 
woman,  can  demand  a  fine  of  one  head  of  cattle  from  the  father 
of  the  child.  The  child  then  belongs  to  its  father;  and  when  it 
is  sufficiently  grown,  he  can  claim  it,  by  paying  two  or  three  head 
of  cattle  for  bringing  it  up,  &c.  If  no  such  fine  is  paid,  then  the 
child  is  the  property  of  the  parents  or  guardian  of  its  mother. 

The  birth  of  children  does  not,  however,  so  frequently  follow 
from  this  kind  of  intercourse  as  one  would  suppose,  on  account 


318  RETARDED  PEOPLES  [Part  II. 

of  the  almost  universal  practice  of  procuring  abortion,  as  soon  as 
it  is  known  that  pregnancy  has  taken  place ;  and  they  have  herbs 
which  cause  abortion  with  little  or  no  danger  to  the  woman  her- 
self, if  administered  within  the  first  two  or  three  months. 


C.    THEFT 

All  kinds  of  theft  will  come  under  the  head  of  civil  cases.  Seizing 
property  by  force  on  the  plea  of  retaliation,  taking  the  law  into 
one's  own  hands,  or  on  any  other  pretence  whatever,  does  not  come 
under  the  head  of  stealing.  Property  thus  seized  must  however 
be  restored,  or  compensation  given  to  its  value.  In  all  such  cases, 
the  unfortunate  plaintiff  has  to  pay  the  law  expenses,  although  he 
seldom  gets  the  full  amount  of  his  property  restored  to  him.  In 
all  cases  of  theft  of  live  stock,  the  law  allows  a  fine  of  ten  for  one ; 
but  the  full  amount  of  this  fine  is  seldom  enforced  in  the  present  day, 
especially  when  the  number  stolen  is  more  than  one  or  two  head. 

In  cases  of  petty  thefts,  the  fines  inflicted  are  very  insignificant, 
and  seldom  amount  to  more  than  the  value  of  the  articles  stolen. 

The  stealing  of  live  stock  is  the  most  important  law  case  in 
Kafirland ;  and  the  following  are  the  principal  points  to  be 
attended  to. 

If  the  property  is  recovered  uninjured,  no  fine  is  paid;  and  if 
part  of  the  property  is  restored  uninjured,  the  thief  is  only  fined 
for  the  missing  or  injured  part. 

The  custom  of  demanding  payment  for  the  "f^poor,"  where 
colonial  property  is  concerned,  although  it  may  be  restored  unin- 
jured, has  been  introduced  by  the  Colonial  Government,  and 
agreed  to  by  the  chiefs ;  and  it  is  of  the  utmost  importance  that  it 
should  be  continued.  And  if  possible,  it  should  also  be  introduced 
in  cases  of  Kafir  versus  Kafir,  among  those  tribes  which  are  under 
our  control. 

The  custom  of  handing  the  "spoor"  over  to  the  first  kraal,  and 
expecting  them  to  pass  it  on  to  the  next,  etc.,  is  also  an  innovation 
introduced  by  the  colonists,  but  which  appears  to  be  absolutely 
necessary,  otherwise  colonial  property  would  never  be  recovered 
as  no  kraal,  or  clan,  would  ever  give  information  respecting,  or 
assist  in  recovering,  the  "white  man's"  property,  were  they  not 
obliged  to  do  so ;  and  it  is  only  carrying  out  their  own  principle  of 
"collective  responsibility."  Among  themselves,  the  owners  of  the 
stolen  property  have  to  follow  the  "spoor"  whithersoever  it  goes; 
and  the  only  assistance  they  can  demand  from  others  is,  that  when 


Chap.  XI,  §  2.]  KAFIR   LAWS  AND   CUSTOMS  319 

it  approaches  within  a  short  distance  of  a  kraal,  say  five  or  six 
hundred  yards,  they  inform  the  people  of  the  said  kraal  of  the 
"spoor,"  and  they  are  bound  to  assist  in  passing  it  on  beyond  their 
kraal,  to  about  the  same  distance  as  above  mentioned,  when  they 
return,  and  the  owners  proceed  on  alone.  If  the  people  of  a  kraal 
refuse  to  assist  in  tracing  the  "spoor"  past  their  kraal  in  the  man- 
ner described,  and  the  owners  cannot  succeed  in  tracing  it  any 
farther,  they  are  then  considered  as  the  guilty  party,  and  the  charge 
of  the  theft  is  at  once  laid  against  them.  Making  the  kraal  near- 
est to  which  the  "spoor"  has  been  obliterated  pay  for  the  theft, 
without  any  other  proof  of  their  guilt,  is  another  necessary  innova- 
tion of  ours,  arising  out  of  the  before  mentioned  disinclination  of 
the  Kafir  to  give  information  against  the  stealer  of  colonial 
property.  Among  themselves,  in  order  to  establish  a  case  against 
a  kraal,  the  "spoor"  must  be  traced  to  within  its  precincts  at 
least ;  and  even  then  every  exertion  must  be  made  by  the  owners  of 
the  stolen  property,  in  conjunction  with  the  people  of  the  said 
Kraal,  to  pass  it  on.  And  even  when  unsuccessful  in  doing  this, 
it  is  very  desirable  that  some  additional  proof  of  guilt  should  be 
obtained,  as  the  chiefs  frequently  throw  out  cases  where  there  is  no 
other  proof  of  guilt  than  that  the  "spoor"  was  traced  on  to  the 
kraal.  The  simple  fact  of  the  "spoor"  having  been  obliterated  by 
cattle  is  not  of  itself  sufficient  to  establish  a  case  against  the  owners 
of  such  cattle ;  although  we  have  made  it  so  in  cases  where  colonial 
property  is  concerned. 

Concealing  a  theft  is  no  crime ;  but  assisting  to  commit  one  is. 
Neither  is  it  a  crime  simply  to  partake  of  the  flesh  of  a  stolen  beast, 
knowing  it  to  be  such,  unless  the  parties  are  in  some  way  connected 
with  the  theft  as  accomplices. 

In  cases  of  theft  (or  indeed  of  any  other  crimes  to  which  the 
principle  of  collective  responsibility  is  applicable)  it  is  not  necessary 
to  identify  the  thief ;  nor  is  it  necessary  that  he  should  be  produced, 
or  even  known.  It  is  sufiicient  if  a  case  has  been  clearly  established 
against  a  kraal. 

d.    INJURY   TO  •  PROPERTY,    TRESPASS,    ETC. 

Kafir  law  requires  that  all  wilful  injury  to  property  be  com- 
pensated for  to  the  full  value  of  the  property  injured.  If  you  set 
fire  to  the  grass,  and  accident  to  person  or  property  is  occasioned 
thereby,  the  law  will  require  you  to  make  compensation  for  the 
injury  done.     If  your  dogs  injure  person  or  property,  and  you  did 


320  RETARDED   PEOPLES  '   [Part  II. 

not  exert  yourself  to  prevent  it,  when  you  might  have  done  so,  a 
case  Ues  against  you.  But  the  law  does  not  appear  to  demand 
compensation  for  what  is  clearly  proved  to  have  been  a  purely 
accidental  injury  to  property,  although  it  will  do  so  in  accidental 
injuries  to  the  persons  of  individuals,  if  the  injury  is  of  a  serious 
nature ;  as  the  latter  would  come  under  the  head  of  criminal  cases, 
and  therefore  could  only  be  overlooked,,  or  the  fine  remitted,  by  the 
chief  himself. 

Trepass  or  injury  done  to  cultivated  lands  or  standing  crops  by 
live  stock  is  not  actionable ;  but  as  the  women,  who  have  charge  of 
the  cultivated  fields,  have  the  right,  sanctioned  by  immemorial 
custom,  to  drive  the  cattle  thus  trespassing  into  the  fields  of  their 
owners,  trespasses  of  this  kind  are  not  of  frequent  occurrence. 
This  singular  custom  is,  I  believe,  the  only  instance  in  which  Kafir 
law  justifies,  or  rather  allows  of,  retaliation. 

To  make  use  of  fallow  lands  originally  brought  under  cultivation 
by  another,  if  the  owner  has  abandoned  them,  is  not  a  trespass,  and 
is  a  very  common  practice;  but  should  the  original  cultivator 
return  and  claim  them,  they  must  be  given  up  to  him  when  the 
crops  have  been  reaped. 

e.    MARRIAGE, 

Marriage  among  the  Kafir  has  degenerated  into-slayery,  and  is 
simply  the  purchase  of  as  many  women  by  one  man  as  he  desires, 
or  can  afford  to  pay  for. 

The  price  or  dowry  paid  for  a  wife  is  left  very  indefinite.  It  is 
not  all  paid  at  the  time  of  marriage,  but  by  degrees;  and  the 
husband  appears  to  be  for  a  long  time  liable  to  fresh  demands  for 
cattle,  under  some  pretext  or  other.  Ten  head  is,  however,  the 
ordinary  price  among  the  commonalty ;  but  twenty  or  thirty  are 
frequently  demanded  for  chiefs'  daughters;  and  chiefs  of  high 
rank  have  to  pay  from  thirty  to  fifty  head,  and  even  more,  for 
their  wives,  when  they  marry  the  daughters  of  chiefs  of  equal,  or 
superior,  rank  to  their  own. 

The  dowry  or  price  paid  for  a  wife  is  called  the  "Ikazi,"  and 
which  name  distinguishes  it  from  the  "Ikebe,"  or  price  paid  for  the 
temporary  use  of  a  woman  or  concubine,  who  is  called  an  "Ish- 
weshwe,"  the  name  of  a  proper  wife  being  "Umfazi." 

The  payment  of  the  "Ikazi"  is  the  legal  proof  of  marriage,  and 
is  the  only  thing  really  necessary  thereto;  although  dancing, 
feasting,  &c.,  are  generally  indulged  in  on  such  occasions. 


Chap.  XI,  §2.]  KAFIR  LAWS  AND  CUSTOMS  321 

Courtship  as  it  exists  with  us  is  unknown.  Sometimes  a  man 
chooses  for  himself,  and  intimates  his  choice  through  a  third  person 
to  the  father  or  guardian  of  the  girl ;  but  the  usual  way  is  for  the 
friends  of  the  girl  to  consult  together  and  select  a  husband  for  her^ 
and  to  send  her  to  the  man  thus  chosen. 

The  girl  herself  is  seldom  or  never  consulted  about  the  matter ; 
and  a  man  to  whom  a  girl  is  thus  sent,  seldom  refuses  to  receive 
her. 

Until  all  demands  with  regard  to  the  dowry  have  been  satisfied, 
the  father  or  guardians  of  the  woman  have  a  legal  right  to  detain 
her  in  their  custody,  should  they  succeed  in  getting  peaceable 
possession  of  her  person ;  but  they  must  not  use  force  for  this  pur- 
pose. This  singular  custom  is  called  "Ukuteleka,"  and  it  leads  to 
a  vast  amount  of  domestic  misery  and  wickedness. 

Although  in  theory,  perhaps,  the  power  of  the  husband  over  the 
wife  is  considered  absolute  in  every  thing  but  taking  her  life ;  yet 
in  reality  there  are  many  checks  to  his  power.  His  own  friends, 
will  interfere  to  prevent  his  indulging  in  any  great  degree  of  bru- 
tality towards  her.  If  he  mutilates  her,  or  inflicts  any  permanent 
injury  on  her  body,  the  chief  will  demand  the  "Isizi"  or  blood 
atonement.  If  also  she  can  succeed  in  running  aw^y  to  her  friends, 
they  have  a  legal  right  to  make  an  additional  demand  of  cattle  to 
those  already  paid  for  her,  and  to  detain  her  until  such  demand  has 
been  complied  with.  And  if  a  woman  utterly  refuses  to  live  with 
her  husband,  on  account  of  ill  usage,  there  is  no  law  to  compel  her 
to  do  so ;  and  the  only  remedy  he  has,  is  to  demand  that  the  dowry 
be  refunded  to  him ;  but  the  law  will  not  support  him  even  in  this, 
if  she  has  borne  him  a  family  of  children.  Kafir  husbands  are  not 
however  generally  cruel  to  their  wives  in  the  common  sense  of  that 
word.  Their  wives  are  nevertheless  mere  slaves,  and  have  all  the 
drudgery  and  laborious  work  to  perform. 

If  a  wife  dies  without  having  borne  children  to  her  husband,  the 
law  will  support  him  in  his  demand  for  the  dowry  to  be  returned  to 
him ;  unless  she  has  been  married  to  him  a  considerable  number  of 
years. 

/.    DIVORCE 

A  man  mav  divorre  his  wife  at  pleasure,  without  assigning  any 
reason  for  so  doing.  And  yet  divorces  are  not  frequent  among 
them.  First,  because  of  the  great  difficulty  there  is  in  recovering 
the  dowry,  even  when  the  husband  is  entitled  to  demand  it,  and 
which  he  is  not,  if  his  wife  has  borne  him  children.     And  secondly^ 


322  RETARDED   PEOPLES  [Part  II. 

because  by  so  doing  he  deprives  himself  of  her  labour  as  his  servant. 
Marrying  another  wife  is  therefore  the  more  common  plan  adopted 
to  humble  and  annoy  a  wife,  when  she  is  inclined  to  be  independent 
and  unruly. 

A  Kafir  seldom  divorces  his  wife  for  adultery ;  he  prefers  receiv- 
ing the  fine  on  such  occasions,  and  giving  her  a  good  thrashing. 

The  wife  also  seems  to  have  the  power  of  divorcing  her  husband, 
according  to  what  I  have  said  bearing  on  this  subject  under  the 
head  of  marriage.  In  case  of  a  woman  thus  leaving  her  husband, 
if  she  marry  again,  the  law  will  order  the  former  dowry  to  be  re- 
stored, although  she  may  have  borne  children  to  her  former 
husband. 

In  all  cases  of  divorce  the  children  belong  to  the  father,  and  are 
entirely  under  his  control. 


g.    INHERITANCE 

It  may  be  thought  that  on  account  of  the  universal  practice  of 
polygamy,  the  law  with  regard  to  inheritance  would  be  very  con- 
fifti^dand  uncertain ;  but  nothing  can  be  more  plain  and  definite. 

Each  wife  Tias  a  separate  establishment.  If  a  man  has  three 
wives,  their  establishment  will  be  thus  distinguished :  —  The 
principal  or  great  wife's  establishment  will  be  called  the  "Ibotwe," 
the  next  in  rank  will  be  called  the  "right  hand,"  and  the  third  in 
rank  the  "left  hand  house."  If  he  has  less  than  three  wives  the 
above  principle  will  nevertheless  be  the  rule  or  guide  as  far  as 
circumstances  will  allow.  If  he  has  more  than  three,  they  will  be 
attached  to  one  or  other  of  the  three  principal  houses ;  but  each  of 
these  minor  houses  will  nevertheless  have  its  own  separate  estab- 
lishment. 

It  is  usual  for  the  husband  to  apportion  cattle  to  each  of  the 
three  major  houses,  but  he  seldom  goes  beyond  this :  hence  the 
minor  houses  are  generally  dependent  in  this  respect  upon  the 
major  houses  to  which  they  are  attached.  The  eldest  son  of  each 
house  inherits  all  the  property  which  has  been  allotted  by  the  JPather 
to  that  house. 

If  the  father  has  neglected  during  his  life  time,  to  declare  in  a 
formal  and  public  manner,  what  portion  of  his  property  he  has 
allotted  to  his  several  establishments,  he  may  be  said  to  die  intes- 
tate; in  which  case  the  oldest  son  of  the  "Ibotwe,"  or  principal 
house  takes  possession,  as  the  heir  at  law,  of  the  whole  of  his 
father's  estate.     But  in  this  case  he  is  bound  to  take  charge  of,  and 


Chap.  XI,  §2.]  KAFIR   LAWS  AND   CUSTOMS  323 

provide  for,  all  his  father's  establishments ;  which  are,  however, 
little  burden  to  him,  as  the  principal  care  of  getting  a  living  de- 
volves on  the  women  themselves. 

Females  can  inherit  nothing,  but  are  themselves  property.  A 
married  woman  is  the  property  of  her  husband;  and  when  he 
dies,  she  becomes  the  property  of  his  heirs;  nor  can  she  marry 
again  without  their  consent. 

Children  belong  solely  to  their  father,  and  the  mother  has  no 
claim  whatever  to  them  under  any  circumstances ;  and  when  the 
father  dies,  they  pass  together  with  his  other  property  to  his  heirs. 
The  dowries  of  the  girls  are  claimed  by  the  eldest  son  of  the  house 
to  which  they  belong,  unless  they  had  been  otherwise  disposed  of 
by  the  father  during  his  lifetime. 

The  eldest  son  of  a  chief's  great  wife  inherits  the  chieftainship 
of  the  tribe  at  his  father's  death. 

The  principal  property  among  the  Kafirs  is  live  stock.  The 
only  inheritable  landed  property  recognized  by  Kafir  law,  is  what 
has  been  brought  under  cultivation,  together  with  the  homestead 
or  site  of  the  kraal.  This  may  be  claimed  from  generation  to 
generation,  and  can  be  forfeited  only  by  committing  some  political 
crime. 

Should  a  man  have  no  sons,  his  property  is  inherited  by  his  father 
if  still  living ;  if  not,  then  by  his  eldest  brother  of  the  same  house ; 
if  there-  is  no  brother  of  the  same  mother,  then  the  property  is 
inherited  by  the  eldest  son  of  his  father's  great  wife ;  in  case  of  a 
failure  of  a  male  in  that  house,  then  by  the  eldest  son  of  the  next 
house  in  rank,  and  so  on.  In  case  of  an  entire  failure  of  brothers, 
then  the  eldest  brother  of  his  father,  born  of  the  same  mother  as 
his  father,  comes  in  for  the  estate. 

In  case  of  a  failure  here,  then  his  father's  eldest  brother  belonging 
to  the  "Ibotwe,"  or  principal  house,  becomes  the  claimant.  If 
there  is  no  male  in  this  house,  then  the  eldest  brother  of  the  next 
house,  and  so  on,  descending  from  house  to  house,  according  to 
their  rank,  until  a  male  is  found  to  inherit  the  property. 

In  case  of  an  entire  failure  of  male  heirs,  the  estate  is  claimed  by 
the  chief,  together  with  dowries  obtained  for  the  orphan  daughters. 

k   MISCELLANEOUS   REMARKS 

When  an  individual  obstinately  refuses  to  obey  the  orders  of  his 
chief,  the  kraal  to  which  he  belongs  is  held  responsible  for  his  con- 
duct ;   and  the  headman  thereof  is  expected  to  punish  him ;   the 


324  RETARDED   PEOPLES  [Pabt  II. 

fine  going,  of  course,  to  the  chief.  When  a  kraal,  or  clan,  is  rebel- 
lious, the  custom  of  "eating  up"  is  resorted  to ;  which  consists  in 
collecting  secretly  an  armed  party,  sufficiently  strong,  and  proceed- 
ing in  as  stealthy  a  manner  as  possible  to  such  kraal  or  clan,  and 
seizing  all  their  cattle,  &c.  If  they  resist,  they  are  fired  upon  or 
assegaied  without  ceremony ;  and  should  any  other  kraal  attempt 
to  assist  the  rebels,  they  also  would  be  eaten  up. 

"Eating  up"  is  the  only  physical  force  which  a  chief  has  at  his 
command  to  keep  his  people  in  order ;  and  although  often  abused 
for  political  purposes,  it  is  absolutely  necessary,  as  being  the  only 
means  he  has  of  commanding  obedience  to  the  laws. 

To  maintain  his  popularity,  and  cause  his  people  willingly  to 
assist  him  on  such  occasions,  the  booty  is  always  divided  among  the 
party  engaged  on  such  service,  the  chief  reserving  only  a  very  small 
portion  for  himself.  Hence  the  system  of  ''eating  up"  is  very 
popular  among  the  Kafirs ;  and  they  are  always  ready  to  turn  out 
and  assist  their  chief  in  plundering  their  fellow  subjects,  without 
ever  thinking  of  inquiring  into  the  merits  of  the  case. 

The  ''Amapakati"  have  the  privilege  of  going  to  "busa"  at  the 
great  place ;  that  is,  they  go  and  reside  on  the  chief's  kraal  for  a 
longer  or  shorter  period,  according  to  their  own  inclinations ;  and 
while  they  remain  there,  they  form  the  court  or  ministry  for  the 
time  being ;  during  which  time  they  enjoy  many  privileges.  They 
settle  all  law  suits  laid  before  the  chief,  and  assist  him  with  their 
counsel  in  all  state  affairs ;  and  they  share  in  all  the  fines  which  may 
accrue  to  the  chief  during  their  ministry.  They  are  also  em- 
ployed as  ''imisila,"  or  sheriffs,  to  enforce  the  sentence  of  the 
chief,  and  they  receive  the  fees  appertaining  to  that  office. 

As  the  "Amapakati"  do  not  take  their  wives  with  them  when 
they  thus  go  to  ''busa,"  women,  as  well  as  food,  are  provided  for 
them  by  the  chief.  This  has  given  rise  to  the  outrageous  and 
licentious  custom  of  the  "  upundhlo,"  which  consists  in  the  chief 
sending  out  a  number  of  the  young  men  belonging  to  his  personal 
staff,  as  a  "press  gang,"  to  collect  by  force  all  the  girls  above  the 
age  of  puberty,  together  with  any  other  unmarried  women  they 
can  lay  hold  of,  and  bringing  them  to  the  great  place ;  where  they 
are  allotted  to  the  councillors,  and  any  other  men,  who  may  belong 
to  the  chief's  staff ;  and  with  whom  they  are  obliged  to  cohabit  for 
the  time  being.  After  a  few  days,  they  are  allowed  to  return  to 
their  homes,  and  another  lot  is  hunted  up.  I  may  mention  that 
the  "upundhlo"  is  not  frequently  resorted  to,  when  a  sufficient 
number  of  volunteers  can  be  obtained. 


Chap.  XI,  §  2.]  KAFIR   LAWS   AND   CUSTOMS  325 

Refugees  are  always  received  by  the  chief  to  whom  they  fly, 
whatever  might  have  been  the  nature  of  the  crime  for  which  they 
fled  from  their  own  chief ;  and  they  are  never  demanded ;  for  if 
they  should  be,  they  would  not  be  given  up. 

When  a  petty  chief  flies  with  his  clan  from  his  paramount 
chief,  he  sends  an  ox  to  the  chief  whom  he  has  joined,  as  an 
acknowledgement  of  his  having  become  his  feudatory ;  upon  which 
a  tract  of  country  is  allotted  to  him. 

In  times  of  peace,  if  a  refugee  is  guilty  of  taking  any  of  his 
neighbours'  cattle  with  him ;  or  if  any  law  suit  was  pending  before 
he  fled,  such  case  may  be  laid  before  the  chief  to  w^hom  he  has 
fled,  and  who  generally  settles  such  matters  impartially,  although 
there  appears  to  be  no  international  law  binding  him  to  do  so. 

When  a  Kafir  wishes  to  leave  his  own  chief  and  join  another,  he 
can  only  do  so  by  flying  at  night  in  the  most  stealthy  manner,  if 
he  has  any  live  stock;  for  should  his  intention  become  known, 
he  would  most  certainly  be  "eaten  up." 

The  paramount  chief  of  each  tribe  is  above  all  law  in  his  own 
tribe ;  he  has  the  power  of  life  and  death,  and  is  supposed  to  do  no 
wrong.  He  is,  however,  subject  in  some  degree  to  the  paramount 
chief  of  the  whole  nation ;  and  who  again,  in  his  turn,  is  subject 
to  some  control  from  the  united  council  of  his  feudatory  chieftains. 

Excepting  the  reigning  chief,  as  above  explained,  all  other 
members  of  chiefs'  families  are  amenable  to  the  law;  although, 
through  interest  etc.,  they  often  evade  it. 


Chapter  XII 
FANTI  CUSTOMARY  LAW  ^ 

I.  PERSONS 

(a)    THE  JAMILY 

A  Fanti  family  consists  of  all  the  persons  liiie^Ux-xifiSCended 
through  females  from  a  common  ancestress,  provided,  that  neither 
they  nor  those  through  whom  they  claim  to  be  the  descendants  of 
the  common  ancestress  had  severed  their  connection  with  that 
root  by  — 

(i.)  Cutting  Ekar,  also  called  Kahire, 
(ii.)  Adoption, 
(iii.)  Partition,  or 
(iv.)  ^Commendation. 

(i.)  Cutting  Ekar  is  a  particular  mode  of  disowning  any  one's 
blood  relation.  When  a  man  desires  to  disown  a  blood  relative,  he 
brings  him  before  the  elders  of  his  town  or  village,  and  in  their 
presence,  as  well  as  in  the  presence  of  the  other  members  of  his 
family,  an  ekar  is  cut  in  twain,  and  saying  clearly,  ^' We  are  now 
divided,"  he  takes  one-half  and  the  disowned  the  other  half.  As 
soon  as  this  ceremony  is  completed,  the  two  persons  have  no  more 
share  or  portion  in  the  property  of  each  other.  Where  a  man  is 
disowned,  it  affects  him  alone ;  but  in  the  case  of  a  woman,  her  issue 
is  included,  for  the  saying  is,  the  children  follow  the  mother's 
condition/^ 

In  Wdbeck  v.  Brown,  February  4,  1884,  per  Chief  Robertson : 
**The  cutting  of  the  custom  or  ekar  is  a  thing  of  the  past  in  Cape 
Coast,  as  a  sign  of  disownment.  It  was  abolished  by  Governor 
Maclean." 

(ii.)  Adoption  is  practised  by  persons  who  have  no  next  of  kin  to 
succeed  to  their  property.     The  person  adopted  is  usually  of  the 

1  [Reprinted  from  "Fanti  Customary  Laws:  A  Brief  Introduction  to 
tke  Principles  of  the  Native  Laws  and  Customs  of  the  Fanti  and  Akan 
Districts  of  the  Gold  Coast,  with  a  Report  of  some  Cases  thereon  De- 
cided in  the  Law  Courts,"  by  John  M.  Sarbah.  William  Clowes  &  Sons, 
Limited,  London,  1904.  Tins  selection,  apart  from  its  systematic  arrange- 
ment of  the  matters  treated,  is  interesting  in  showing  clearly  the  effect  of 
contact  of  primitive  custom  with  modern  legal  ideas.] 

326 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY   LAW  327 

same  clan  as  the  person  adopting,  but  if  of  a  different  clan,  he 
assumes  the  name  given  him  and  becomes  a  member  of  his  clan. 
To  make  adoption  valid,  it  must  be  done  publicly,  and  the  person 
who  wishes  to  adopt  must  not  only  get  the  consent  of  the  family 
and  parents  whose  child  is  about  to  be  adopted,  but  he  must  clearly 
state  before  witnesses  his  desire  and  intention.  A  person  cannot 
adopt  another  outside  his  tribe.  On  account  of  the  custom  of 
descent,  which  is  traced  through  the  female  line,  it  is  more  usual  to 
adopt  females  in  preference  to  males. 

(iii.)  Partition  is  of  rare  occurrence,  where  persons  live  in  the 
same  town  or  locality.  It  takes  place  frequently  where  two 
branches  of  one  family,  living  in  separate  localities,  agree  to  relin- 
quish to  the  other,  all  claim  to  whatever  family  property  that  other 
has  in  its  possession. 

E.g.:  The  family  of  Anan  is  divided  into  two  branches,  one 
residing  in  the  family  house  at  Chama,  and  the  other  branch  living 
on  the  family  land  at  Siwdu.  As  soon  as  the  two  branches  agree 
to  give  up  all  claim  to  the  property  in  each  other's  possession  and 
retain  what  each  has,  none  of  the  members  of  the  Chama  branch  is 
considered  member  of  the  Siwdu  family.  The  successors  to  each 
property  will  be  selected  from  each  branch.  If  one  branch  get 
into  family  difficulties,  and  the  members  thereof  decide  to  sell 
their  possessions,  the  other  branch  cannot  stop  such  sale.  But 
if  at  any  time  the  right  person  to  succeed  to  one  branch  of  the 
family  be  a  minor,  then  the  headman  or  senior  member  of  the  other 
branch  is,  by  his  position,  guardian.  On  failure  of  the  legal  suc- 
cessors, the  two  branches  merge,  and  the  existing  line  succeeds  to 
both.  Partition  does  not  cause  an  absolute  severance  from  one's 
family.  In  fact  it  is  usual  for  the  headman  of  one  branch  to  pre- 
side at  the  ceremony  by  himself  or  deputy,  whenever  a  successor  is 
about  to  be  installed  as  headman  of  the  other  branch. 

(iv.)  Commendation.  When  a  person  is  anxious  to  enter  another 
man's  family,  so  that  he  may  share  in  the  protection  and  privileges 
which  the  members  thereof  enjoy,  he  goes  before  the  head  of  that 
family,  and  formally  transfers  himself  and  all  his  worldly  posses- 
sions into  the  safe  keeping  of  his  new  protector.  Such  is  the  ordi- 
nary commendation.  This  must  not  be  confounded  with  that 
voluntary  fellowship  of  a  person  in  the  retinue  of  some  influential 
neighbour,  or  with  that  species  of  service  whereby  a  man  with  his 
family,  in  town  or  village,  voluntarily  accepts  a  sum  of  money  from 
an  influential  king  or  chief,  in  order  to  be  counted  among  his  sub- 
jects.    The  head  of  a  family  and  the  whole  family  can  (and  in 


328  RETARDED   PEOPLES  [Part  II. 

days  gone  by  did  so)  commend  themselves  to  rich,  powerful,  or 
influential  neighbours. 

In  former  times,  where,  through  straitened  circumstances  at 
home,  or  through  a  crushing  family  debt  or  calamity,  a  member  of 
the  family  was  sold  or  pawned,  he  ceased  to  be  a  member  of  his 
family ;  but  whenever  he  was  reclaimed,  he  regained  all  his  rights, 
privileges,  and  position  in  the  family.  But  when  a  person  through 
misconduct  was  expelled  from  the  family,^  or  was  sold  and  got  rid 
of  by  the  family  after  due  deliberation,  he  ceased  to  be  a  member 
of  the  family,  even  if  his  master  gave  him  his  freedom. 

The  members  of  the  family  are  termed  Ebusuafu.  |The  normal 
condition  of  a  Fanti  family  being  joint,  the  law  throws  the  burden 
of  proving  that  a  person  has  ceased  to  be  joint,  or  that  a  person  has 
ceased  to  be  a  member  thereof,  on  the  person  asserting  it)|  There 
is  no  limit  to  the  number  of  persons  of  whom  a  family  may  consist, 
or  to  the  remoteness  of  their  descent  from  the  common  stock,  and 
consequently  to  the  distance  of  their  relationship  from  each  other. 
But  the  Fanti  coparcenary,  properly  so  called,  constitutes  a  much 
larger  body.  When  we  speak  of  a  joint  family  as  constituting  a 
coparcenary,  we  refer,  not  to  the  entire  number  of  persons  who  can 
trace  descent  from  a  common  female  person,  and  among  whom  no 
cutting  of  the  ekar  has  ever  taken  place;  we  include  only  those 
persons  who,  by  virtue  of  relationship,  have  the  right  to  enjoy  and 
hold  the  joint  property,  to  restrain  the  acts  of  each  other  in  respect 
of  it,  and  to  burden  it  with  their  debts.  Outside  this  body  there 
is  a  fringe  of  persons  who  possess  inferior  rights,  such  as  that  of 
residence  in  the  case  of  children,  of  maintenance  in  the  case  of 
domestics,  or  who  may  under  certain  contingencies  hope  to  enter 
into  the  coparcenary. 

The  ordinary  incidents  of  a  family  are  — 

(i.)  Common  clan ; 

(ii.)  A  common  penin ; 

(iii.)  Common  liability  to  pay  debts ; 

(iv.)  Common  funeral  rites ; 

(v.)  Common  residence ; 

(vi.)  Common  burial-place. 

1  Derx,  Governor  of  the  Dutch  possessions,  in  an  official  communica- 
tion to  Geo.  Maclean,  the  Judicial  Assessor,  on  November  30,  1846, 
writes :  "The  9  ackies  alluded  to  as  subsequently  borrowed  from  Effoom 
"by  the  father  of  the  above-mentioned  boy,  Quashie  Kin,  which  person, 
through  making  of  much  debts,  was  publicly  abandoned  by  the  family, 
and  according  to  the  black  laws  the  debts  are  thereby  null  and  void"  as 
against  the  family  of  the  debtor. 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY  LAW  329 

In  the  native  courts,  and  with  the  experienced  Judges  of  the 
Supreme  Court,  these  several  incidents  are  most  carefully  looked 
into  in  deciding  contending  claims,  and  for  any  light  which  may  be 
thrown  upon  the  matter,  the  opinion  of  the  neighbourhood,  and 
the  statements  of  domestics  and  friends  and  servants,  are  received 
in  evidence.     Amonoo  v.  Amp'ima} 

(i.f  Common  clan  :  members  of  the  family  belong  to  the  same 
clan,  and  to  this  rule  there  is  no  exception  whatever.^  The  slave 
becomes  a  member  of  his  master's  clan.  The  children  of  a  free- 
born  woman  belong  to  their  mother's  clan  and  not  to  that  of  the 
father :  e.g.  a  man  of  the  Nsonna  clan  whose  father  is  an  Annona 
clansman  is  not  at  all  entitled  to  any  Annona  property,  for  he  is  not 
a  member  of  his  father's  family.  Nor  can  a  man  be  a  member  of 
two  clans. 

(ii.)  A  common  penin  (elder),  also  called  Egya,  father. 

The  senior  or  other  male  member  of  a  family  who  has  control 
of  the  family,  and  is  its  representative,  is  called  the  penin,  or  egya. 
Such  person  must  of  necessity  be  a  member  of  the  same  clan ;  he 
may  be  a  freeborn  person  of  the  heritable  class  (Dihi)  known  as  the 
head  of  the  family,  managing  and  directing  its  affairs ;  or  he  may 
be  the  person  who  first  brought  wealth  into  the  family;  or  in- 
creased its  importance  by  buying  slaves  or  receiving  several 
persons  by  way  of  commendation ;  or  who,  by  some  act  or  deed, 
had  increased  the  family  possessions.  The  penin  has  control  over 
all  the  members  of  the  family  and  the  issue  of  such  members. 
Where  the  founder  of  the  family  is  deceased,  then  the  senior  male 
member  in  the  line  of  descent  is,  in  the  absence  of  any  direction  to 
the  contrary,  the  penin.  As  such,  he  is  the  natural  guardian  of 
every  member  within  the  family.  He  alone  can  sue  and  be  sued,^ 
as  the  representative  of  the  family,  respecting  claims  on  the  family 
possessions,  and  he  is  as  much  the  guardian  and  representative  for 
all  purposes  of  property  as  the  Roman  father  —  Paterfamilias. 

The  members  of  the  family  are  bound  to  obey  the  lawful  com- 
mands of  the  penin  ;  he  arranges  the  rooms  in  the  family  residence 
to  be  allotted  to  each,^  and  what  portions  of  the  family  lands  each 
is  to  cultivate  or  possess.  Rooms  and  lands  so  allotted  continue 
in  the  possession  of  such  persons  and  their  successors  until  the 
penin  rearranges  them. 

When  a  member  takes  upon  himself  to  take  possession  of  the 

1 1  Fanti  Law  Reports  214. 

2  Mensa  v.  Krakue,  2  F.  L.  R.  86 ;   Asraidu  v.  Dadzie,  1  F.  L.  R.  174. 

3  Barnes  v.  Mayan,  1  F.  L.  R.  180 ;    Halmond  v.  Daniel,  1  F.  L.  R.  182. 


330  RETARDED   PEOPLES  [Part  II. 

family  property  or  a  part  thereof  without  the  permission  of  the 
penin;he  can  be  removed  at  any  time,  and  another  person  placed  in 
his  stead.  So  also,  a  member  of  the  family  making  any  additions 
to  the  family  residence  or  property  cannot  have  an  exclusive 
right  thereto  as  against  the  family,  unless  at  the  time  of  making 
the  addition  the  penin  reserved  to  him  the  exclusive  or  special 
enjoyment  of  the  addition  or  improvement. 

The  penin  is  usually  one  whose  fitness  had  been  recommended 
by  the  immediate  predecessor,  and  who  had  been  confirmed  in  his 
position  by  all,  or  by  the  majority  of,  the  principal  members  of  the 
family. 

The  principal  members  of  the  family  have  the  right  to  pass  over 
any  person  so  recommended,  and  to  elect  another  member  of  the 
family  instead.  Where  the  penin  suffers  from  mental  incapacity, 
or  enters  upon  a  course  of  conduct  which,  unchecked,  may  end  in 
the  ruin  of  the  family,  or  persistently  disregards  the  interests  of  the 
family,  he  can  be  removed  without  notice  by  a  majority  of  the 
other  members  of  the  family,  and  a  new  person  substituted  for 
him. 

In  the  absence  of  the  penin,  the  eldest  male  member  of  the  family 
acts  as  penin,  for  the  long  absence  or  incapacity  of  the  penin  must 
not  prejudice  the  interests  of  the  family. 

Like  other  members  of  the  family,  the  penin  has  but  a  life  inter- 
est in  the  immoveable  property  of  the  family. 

(iii.)  Common  liability  to  pay  debts.  Not  only  does  the  Cus- 
tomary Law  render  the  person  or  persons  who  defray  the  burial 
expenses  of  any  person  prima  facie  liable  and  responsible  for  the 
debts  of  the  deceased,  but,  as  Bosman  states,  the  members  of  a 
family  and  the  head  thereof  are  jointly  and  severally  responsible 
for  any  family  liability.  If  a  member  of  a  family  contract  debt 
which  benefits  the  family,  or  commit  a  wrong  for  which  he  is 
liable  to  pay  damages  or  give  satisfaction,  the  other  members  of 
his  family  are  bound  to  pay,  or  such  member  must  be  given  up 
by  the  family  to  the  person  making  the  claim.  If  the  family 
do  not  wish  to  be  held  responsible  for  the  future  acts  of  a  certain 
member,  there  must  be  a  public  notice  of  their  decision  to  that 
effect,  and  such  person  must  be  expelled  from  the  family,  thereby 
severing  his  connection  with  them.  A  person  is  liable  for  the  debts 
and  the  consequences  of  the  torts  of  his  slaves  and  the  members 
of  his  family  under  his  control.  While  a  husband  is  living  with 
his  wife,  or  is  providing  for  and  maintaining  her,  he  is  not  liable 
for  her  contracts,  debts,  or  liabilities,  except  for  any  medical  ex- 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY   LAW  331 

penses  she  may  be  put  to  for  herself  or  child  by  him.  For  the  wife, 
if  freeborn  or  domestic  of  a  different  family,  can  acquire  and  hold 
property  apart  from  the  husband,  and  has  her  own  family  to  fall 
back  on.  If  the  wife  be  a  domestic  and  member  of  the  same 
family  as  the  husband,  their  common  master's  liability  for  them 
remains. 

Children  are  liable  for  the  debts  of  their  mother. ^ 
Not  only  is  a  father  liable  to  maintain  his  child,  but  if  he  fail  to 
obtain  a  wife  for  his  son  on  reaching  the  age  of  puberty,  he  is 
liable  for  damages  arising  from  the  son's  misconduct  with  any 
woman.  On  this  point  the  Commissioners  appointed  by  the 
Governor  of  the  Gold  Coast  Colony  in  August,  1894,  to  inquire  into 
various  matters  relating  to  Native  Courts,  suggest  in  their  report 
that  the  question  whether  a  father  is  liable  for  his  sons'  debts  or 
wrongful  acts,  and  whether  the  family  or  the  head  of  the  family  is 
liable  for  one  of  its  members,  and  whether  a  host  is  liable  for  his 
guest,  should  be  left  to  be  decided  in  each  case  when  it  arises  by 
evidence  as  to  the  custom  of  the  particular  district.^ 

(iv.)  Common  funeral  rites.  On  the  decease  of  a  member,  all 
persons  who  are  mpmhpr^  nf  thp  fflmiJv  take  part  in  making  the 
funeral  custom  and  contribute  in  defraying  its  expenses,  for  which 
they  are  primarily  liable.  The  members  of  the  clan  also  take 
part  in  observing  the  funeral  custom,  and  contribute  collectively 
towards  the  payment  of  the  same,  but  they  are  not  liable  at  all. 
It  is  usual  for  the  local  senior  member  of  the  clan,  with  the  head  of 
the  family  of  the  deceased,  to  preside  over  the  funeral  custom,  to 
receive  the  expressions  of  condolence  from  sympathizing  neigh- 
bours, and  to  accept  funeral  donations.  "It  is  customary  for 
friends  and  acquaintances  to  bring  presents  to  the  relations  of  the 
deceased,  to  assist  them  in  performing  the  funeral  ceremonies  in  a 
becoming  manner."  (Cruickshank,  vol.  ii.  217.)  Funeral  dona- 
tions are  of  two  kinds,  to  wit :  (a)  Insawa,  which  are  not  repaid  at 
all,  being  considered  as  gifts  to  the  deceased ;  (b)  Esi-adzi,  which 
may  be  more  correctly  called  funeral  custom  advances.  Respect- 
ing esi-adzi,  Cruickshank  writes  :  "  Considerable  sums  are  received 
in  presents  at  the  time  of  the  funeral.  They  are  seldom  a  source  of 
gain,  as  it  is  expected  that  the  receiver  will  make  similar  presents 
to  the  donor  upon  the  occasion  of  death  in  his  family."  On  enter- 
ing into  the  accounts  of  the  funeral  custom  expenses,  esi-adzi 

1  Quacoom  v.  Ansa,  2  P.  L.  R.  1. 

2 "  Gold  Coast  Government  Gazette,"  January  31,  1895,  p.  34,  repro- 
duced in  2  F.  L.  R.  182. 


332  RETARDED   PEOPLES  [Pabt  II. 

sums  are  set  aside,  and  if  the  Insawa  presents  are  found  insufficient 
to  defray  the  expenses,  the  immediate  relatives  of  the  deceased 
contribute  for  this  purpose.  Any  sums  received  from  the  children 
or  grandchildren  of  the  deceased,  or  from  his  widows,  are  in  the 
nature  of  Insawa;  the  liability  to  pay  such  sums  by  no  means 
makes  them  members  of  his  family,  where  such  widow  or  widows 
are  of  a  different  family,  since  they  are  not  entitled  to  be  present 
when  such  accounts  are  being  gone  into,  nor  can  they  be  compelled 
to  contribute  towards  the  liquidation  of  any  deficiency. 

(v.)  Common  residence.  Persons  who  have  a  right  to  reside  in 
the  family  house,  or  the  right  to  dwell  on  the  family  possessions 
unconditionally,  are  members  of  the  same  family.  "It  was  cus- 
tomary to  regard  the  possession  of  a  house  as  a  common  family 
fund  in  all  the  members  of  the  family ;  while  they  remained  such, 
each  had  a  share  at  the  same  time  that  the  head  or  representative 
of  the  family  had  the  direction  and  disposed  of  it."  (Cruickshank, 
vol.  i.  316.) 

(vi.)  Common  burial-place.  It  is  customary  for  the  family  to 
have  a  common  burial-place,  which  may  be  either  in  the  family 
dwelling-house,  or  a  grove  or  a  plot  of  land  set  apart  for  burial. 
Children  by  a  woman,  freeborn  or  of  a  different  family,  can  only 
be  buried  in  the  family  burial-place  of  the  father,  by  special  leave 
of  the  head  of  the  family.  The  members  of  a  family  have  a  right 
to  burial  in  such  burial-place,  and  it  is  here  that  libations  are  made 
on  the  special  Adai  seasons,  or  during  the  time  of  Ahuha  kuma. 


(6)    MARRIAGE 

The  customary  law  relating  to  marriage  is  very  simple,  but,  by 
some  inexplicable  process,  it  is  a  stumbling-block  to  the  foreigner, 
and  to  the  native  who  considers  himself  better  than  his  forefathers. 
The  attention  of  those  whose  sole  object  on  the  Gold  Coast  is  to 
discredit  the  Fanti  marriage  institution  is  respectfully  directed  to 
an  accurate  study  of  the  English  marriage  system.^  From  the 
English  law  point  of  view,  a  man's  family  is  that  of  his  father,  and 
pedigree  is  generally  traced  in  the  m^lejine. 

ine  converse  is  the  case  with  the  inhabitants  of  the  Gold  Coast, 
Asanti,  and  other  neighbouring  places.     In  the  early  days  of  the 

^  "Wooings  and  Weddings  in  Many  Lands."  By  Annie  Hyatt- 
Woolf.  —  Many  of  our  own  wedding  customs  are  survivals  of  the  days 
when  marriage  laws  were  of  the  laxest  description,  and  it  was  the  vogue 
for  the  would-be  husband  to  seize  and  carry  off  by  force  the  lady  of  his 
fancy.     But  later  times,  better  manners. 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY   LAW  333 

missionaries  on  the  Gold  Coast,  a  practice  or  usage  arose  amongst 
the  converts  of  recognizing  the  EngHsh  law,  while  native  custom 
was  retained.  The  wife,  by  matrimony,  took  the  name  of  her 
husband,  and  at  his  death,  his  children  and  widow  took  a  half  of 
his  moveable  property,  while  his  own  family  took  the  other  half. 
This  practice  cannot  be  said  to  be  unreasonable  or  against  the 
principles  of  justice,  equity,  and  good  conscience. 

Marriage  is  the  union  of  a  man  to  a  woman  to  live  as  husband 
and  wife  for  life.  It  is  sometimes  preceded  by  betrothals,  which 
often  take  place  long  before  a  girl  arrives  at  a  marriageable  age. 
This  is  done  when  a  person  desires  to  be  connected  with  the  family 
of  a  friend,  or  desires  his  child  or  relative  to  be  so  connected  with  a 
desirable  family.  The  acceptance  of  any  money  or  token,  called 
consawment  money  or  token,  and  a  piece  of  cloth  for  this  specific 
purpose,  destines  the  girl  to  be  the  wife  of  the  person  for  whom 
the  alliance  is  sought.  This  betrothal  is  perfectly  binding  on  the 
family  of  the  girl,  who  is  regarded  as  the  wife  of  the  person  betroth- 
ing her.  He  narrowly  watches  her  conduct,  and  frequently 
demands  and  receives  compensation  for  any  liberties  she  may  allow 
other. men  to  take  with  her. 

According  to  the  law  of  the  country,  every  person  is  the  member 
of  some  family,  and  all  the  other  memJDcrs  of  that  family  are 
answerable  for  him.  In  theory,  the  stranger  belongs  to  the  family 
of  the  person  with  whom  he  lodges,  to  whom  he  came,  or  who  is  his 
landlord.  A  father  is  entitled  to  all  the  earnings  of  his  son  before 
his  marriage.  It  is  the  duty  of  the  father  to  engage  a  wife  for  his 
son  as  soon  after  he  reaches  the  age  of  puberty  as  possible ;  and  he 
is  generally  liable  in  damgaes,  if  his  unmarried  son,  living  with  him, 
commits  adultery  with  another's  wife  or  any  woman.  This  cus- 
tomary law  is  an  old  one,  and  is  referred  to  by  Artus  in  1625. 
According  to  him :  "  Marriage  being  the  foundation  of  Society, 
they  keep  their  daughters  in  cloisters,  when  they  are  marriageable, 
and  their  sons  leave  themselves  to  their  disposal,  never  wooing  or 
looking  on  their  wives  before  they  marry  them;  giving  nothing 
with  their  sons  but  what  they  earn  themselves.  Only  the  father 
gives  a  peto  and  a  half  of  gold,  and  the  mother  half  a  peto,  i.e.  half 
an  ounce,  and  the  richest  no  more."  In  very  many  parts  of  the 
Gold  Coast,  that  is  in  the  inland  districts,  this  custom  still  exists, 
but  where  European  influence  has  had  its  way,  he  thinks  twice  who 
desires  to  take  a  wife,  what  with  sundry  initial  fees  of  eighteen 
shillings  and  upwards,  besides  other  heavy  expenses. 

If  the  father  be  dead,  his  successor  is  entitled  to  the  aforesaid 


334  RETARDED   PEOPLES  [Part  II. 

earnings,  and  he  is  bound  to  provide  the  wife  when  the  occasion 
arises. 

He  who  desires  a  woman,  whether  maiden  or  widow,  in  marriage, 
must  apply  to  her  family,  or  person  or  persons,  in  loco  parentis, 
for  consent,  and  without  such  application  and  consent  there  can 
be  no  betrothal.  Nor  is  there  any  remedy  for  breach  of  promise  of 
marriage.  If  a  man  fail  to  marry  a  woman  for  whose  hand  he  had 
applied,  or  if  such  woman  refuse  to  marry  him,  or  her  family  with- 
draw their  consent,  no  action  arises,  and  no  damages  are  incurred 
by  the  person  in  default,  who,  however,  forfeits  any  consawment 
or  anything  given  to  the  other. ^  For  instance,  a  man  after  giving 
consawment  to  the  family  of  his  intended  wife,  and  money,  trinkets, 
and  other  valuable  presents  to  herself,  cannot  have  any  of  them 
back  should  he  improperly  break  off  the  engagement.  But,  if  the 
breach  is  caused  by  the  woman  or  her  family,  they  are  bound  to 
return  him  the  consawment  and  every  present  to  herself  and  family, 
€ven  though  he  may  have  received  presents  from  them ;  the  only 
exception  is,  in  the  case  of  funeral  custom  donations,  as  to  which 
accounts  are  entered  into  and  the  balance  struck  off. 

In  order  to  be  valid,  a  marriage  must  not  be  in  violation  of  any 
rule  as  to  tribal  relationship,  in  some  districts,  or  consanguinity. 
A  man  may  not  marry  his  uterine  sister,  his  father's  sister,  or 
mother's  sister,  or  brother's  daughter,  or  mother's  sister's  daughter. 
A  man  can  marry  his  father's  sister's  child.  The  union,  however, 
is  not  encouraged.  An  adopted  son  or  daughter  falls  within  the 
same  rules  both  in  his  adoptive  and  natural  families,  and  the  same 
rule  applies  to  their  issue.  In  some  districts,  a  marriage  between 
freeborn  persons  of  the  same  clan  is  very  much  discouraged,  but 
is  not  improper  between  a  freeborn  and  a  domestic,  or  between 
two  domestics.  To  the  question  of  the  judicial  assessor  in  Penin  v. 
Duncan,^  about  the  essential  acts  or  ceremonies  to  constitute  a 
valid  marriage,  according  to  the  custom  of  the  country,  the  chiefs 
replied :  "  When  a  man  intends  to  have  a  certain  woman  for  his 
wife,  he  applies  to  he  family,  asks  her  to  be  given  in  marriage  by 
taking  to  the  family  according  to  his  means,  two  flasks  of  rum,  or 
two  ackies  of  gold  dust,  or  four  or  six  ackies,  according  to  his 
means.  Upon  this,  if  the  family  approve,  they  agree  to  give  the 
woman.  This  request  and  consent  with  the  first  present  alone 
make  a  valid  marriage."  The  term  "head  rum,"  so  often  used  in 
the  case  of  marriage,  is  an  instance  of  erroneous  and  deplorable 
interpretation  of  Fariti  into  English.  Rum  was  unknown  to  the 
1  Neizer  v.  Dontoh,  1  F.  L.  R.  129.  2  i  p.  l.  R.  118. 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY   LAW  335 

people  until  brought  to  them  by  those  engaged  in  the  slave  trade, 
and  before  then,  surely,  marriage  was  not  an  unknown  institution. 
The  beverages  made  from  maize,  and  extracted  from  the  date  and 
palm  trees,  were  common,  but  instead  of  nuptial  wine,  an  ignorant 
clerk  said  "head  rum"  for  Etsir  ensa.  The  term  Etsir  ensa  is 
evidently  a  contraction  of  Etsir  nsa-nkredzi,  literally,  tokens  or 
price  of  the  head ;  for  in  all  primitive  societies  the  idea  of  purchas- 
ing a  wife  underlies  the  institution  of  marriage,  but  rum,  the  curse 
of  West  Africa,  is  not  essential  at  all  in  contracting  marriage. 
Cruickshank,  writing  on  marriage,  says  in  his  second  volume, 
^'native  contracts  of  marriage  are  made  by  the  payment  of  a  cer- 
tain sum  to  the  relations  of  the  bride.  This  sum  varies  according 
to  the  rank  of  the  individual  from  2  ounces  gold  =  £8,  to  4|  ackies 
=  22s.  Qd.,  but  it  is  more  frequently  paid  in  goods  than  in  gold." 
Gold  or  goods  so  given,  for  the  hand  of  a  woman  in  marriage,  were 
called  Etsir  nsa-nkredzi,  rendered,  in  the  records  of  the  old  judicial 
assessors,  consawment  money.  This  word  is  also  mentioned  by 
Bowdich  in  his  work  on  Asanti ;  and  when  one  bears  in  mind  that 
some  of  the  Etsir  nsa-nkredzi  are  distributed  among  the  relatives 
and  more  immediate  friends  of  the  woman,  as  proof  of  the  honour- 
able alliance,  the  absurdity  of  "head  rum"  becomes  manifest. 

After  the  consawment  is  accepted,  follows  the  matter  of  dowry. 
''That  depends  on  the  family.  If  they  tell  the  man  that  they 
require  dowry  to  be  paid,  they  state  the  amount  they  wish,  some- 
times one  ounce,  or  nine  ackies."  If  the  woman's  family  do  not 
wish  for  dowry,  the  man  is  not  bound  to  pay  anything.  Among 
the  poorer  classes,  the  man  and  woman  live  together  without  any 
dowry  having  been  paid  at  all,  and  yet  such  marriage  is  perfectly 
legal,  and  the  husband  can  sue  any  one  for  satisfaction,  that  is, 
damages,  for  misconduct  with  the  wife. 

If  a  man  seduce  an  unmarried  woman,  he  is  liable  to  pay  to  her 
family  damages  for  the  wrong  so  done  her  and  the  disgrace  brought 
on  her  family.  When  such  seduction  was  under  promise  of  mar- 
riage, the  liability  to  damages  is  not  extinguished  by  Siuy  consawment 
subsequently  given  by  the  seducer  to  her  family,  who  can  at  any 
time  hold  it  as  satisfaction  of  the  claim  for  damages  for  the  wrong 
done  their  child.  Where  a  married  woman  is  seduced,  her  seducer 
is  bound  to  pay  to  the  husband  as  damages  a  fine  or  penalty  called 
Brabbu,  which  is  for  the  pacification  of  the  injured  husband,  and 
is  not  less  than  the  value  of  the  consawment  dowry  and  all  the  mar- 
riage expenses.  If  the  marriage  is  continued,  only  pacification  fine 
can  be  claimed,  the  amount  of  which  is  fixed  according  to  the  social 


336  RETARDED   PEOPLES  [Part  II. 

standing  of  the  injured  husband,  guided  by  the  general  character  of 
the  seduced  woman.  Moreover,  where  the  conduct  of  the  wife 
was  brought  about  more  or  less  by  the  husband's  treatment,  the 
seducer  is  liable  to  a  nominal  fine.^  And  if,  on  account  of  such 
seduction,  the  former  marriage  is  dissolved,  and  he  marries  the 
woman,  he  cannot  at  any  time  recover  from  her  family  what  he 
had  so  paid,  even  if  the  woman,  without  any  cause  whatever, 
refuse  to  live  with  him  then  or  afterwards.  Nor  can  he  recover 
compensation  from  any  one  who  may  take  this  woman  away  from 
him,  for,  unless  a  man  has  given  consawment,  he  cannot  recover 
against  anybody  for  seduction  of  a  person  who  is  nothing  more 
than  his  mistress. 

Where  the  consent  of  a  woman's  family  cannot  be  gained,  either 
because  they  improperly  refuse  to  give  such  consent,  or  because 
they  reside  in  such  a  distant  place  that  it  is  impossible  to  obtain 
such  consent,  a  man  and  woman,  who  voluntarily  agree  to  live  as 
man  and  wife  for  life,  can  contract  a  valid  marriage ;  provided  that 
such  agreement  is  expressly  made  in  the  presence  of  credible  and 
respectable  witnesses,  or  in  the  presence  of  the  chief  or  headman  of 
the  place,  followed  by  the  man  and  woman  living  as  husband  and 
wife. 

When  there  has  been  a  marriage  in  fact,  the  validity  thereof  is 
presumed,  and  where  the  caprice,  avarice,  or  ambition  of  a  parent 
has  not  been  excited  to  force  on  a  marriage,  it  will  be  found  by 
careful  study  of  the  people  and  examination  of  the  local  marriage 
institution,  that  marriage  entirely  rests  on  the  voluntary  consent 
of  a  man  and  a  woman  to  live  together  as  man  and  wife ;  which 
intention,  desire,  consent,  or  agreement,  is  further  evidenced  by 
their  living  together  as  husband  and  wife.  All  other  ceremonies 
and  expenses  attending  marriage  are  superfluous,  but  are  useful 
and  taken  account  of  in  assessing  damages  in  case  of  criminal  con- 
versation. Briefly  stated,  therefore,  when  a  man  desires  to  marry 
a  woman,  he  goes  personally  or  sends  some  one  to  her  parents  or 
family  for  her  hand.  If  his  proposal  is  agreeable  to  the  family, 
and  he  receives  their  consent,  the  consawment  money  or  token, 
valuing  as  much  as  he  can  afford,  is  sent  to  them.  That  is  all  that 
is  necessary  to  constitute  the  marriage  tie.  The  man  may,  ac- 
cording to  his  means,  send  to  his  bride  some  dresses,  so  that  she 
may  come  to  him  properly  attired.  In  marriages  where  one  finds 
such  expensive  ceremonies,  it  is  a  notorious  fact,  there  is  no  unity 
of  interest,  for  the  domestic  arrangement  is  such  that  the  wife 
1  Penin  v.  Duncan,  1  F.  L.  R.  118.     See  judgment  by  Chalmers. 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY   LAW  337 

rarely  resides  in  the  same  house  with  her  husband,  but  only  carries 
his  food  to  him  daily  and  ministers  to  his  desires. 

On  the  death  of  the  husband,  his  widows,  him  surviving,  and 
their  children  by  him,  are  entitled  to  reside  in  any  house  built  by 
him,  and  the  children  and  their  issue  have  a  life  interest  in  such 
house,  subject  to  good  behaviour.^ 

VWhen  there  has  been  a  betrothal,  a  man  can  claim  his  wife  on 
her  reaching  the  age  of  puberty,  and  he  is  bound  to  support  and 
maintain  her  from  the  day  of  betrothalJ  A  man  is  bound  to  main- 
tain his  wife,  and  it  is  her  duty  to  obey  his  request  to  live  with  him, 
and  to  perform  all  his  lawful  orders.  A  man  can  contract  other 
marriages.  By  courtesy,  the  first  wife  should  be  informed  of  the 
proposed  alliance ;  but  the  omission  to  do  so  is  no  cause  for  divorce 
or  termination  of  the  marriage  by  the  first  wife.  A  woman  living 
in  concubinage  cannot  sue  the  man  with  whom  she  is  so  living  for 
any  maintenance,  nor  can  her  family  or  parents  sue  the  man  for 
any  satisfaction  or  maintenance.  Whatever  is  given  or  entrusted 
by  a  man  or  woman  to  the  person  with  whom  he  or  she  is  living  in 
concubinage,  cannot  be  reclaimed  on  any  consideration  whatso- 
ever. This  custom  of  forfeiture  is  called  sarwie.  At  first  sight, 
this  custom  may  seem  repugnant,  but  the  grounds  for  it  are  not 
unreasonable.  Although  men  of  substance  and  the  influential 
classes  will  deny,  or  question,  the  existence  of  the  custom  or 
usage  known  as  sarwie,  or  at  least  endeavour  to  limit  its  effect  on 
account  of  its  restraining  influence  on  concubinal  and  illicit  inter- 
course, this  salutary  custom  or  usage  undoubtedly  exists,  and  is 
well  known  to  the  female  community  {Quassua  v.  Ward).^  In 
former  times,  this  particular  custom  placed  a  great  check  or 
restraint  on  the  wealthy,  and  those  traders,  European  and  native, 
who  were  in  the  habit  of  keeping  a  host  of  women  under  their  pro- 
tection as  concubines,  euphemistically  called  friends.  Knowing 
perfectly  well  that  the  Customary  Law  compels  no  man  to  main- 
tain his  mistress,  these  ''friends"  had  no  claim  for  support  or 
maintenance  on  their  so-called  protectors.  But  if  such  a  woman 
has  a  child  by  her  protector,  he  is  bound  to  look  after  her  during 
her  illness  only,  and  to  pay  any  expenses  attending  her  confine- 
ment. The  sole  or  principal  object  of  keeping  these  women,  for 
whom  no  consawment  had  been  given,  and  who  had  neither  the 
status  nor  rights  of  a  wife,  was  for  their  services.     The  protector 

1  Barnes  v.  Mayan,  1  F.  L.  R.  180 ;    Amamoo  v.  Clement,  1  F.  L.  R. 
180 ;   Swapim  v.  Ackuwa,  1  F.  L.  R.  191. 
2 1  F.  L.  R.  117. 


338  RETARDED   PEOPLES  [Part  II. 

lives  on  their  services.  A  man  having  such  a  woman  usually 
employed  her  without  any  pay  or  remuneration  in  selling  goods, 
which  he  constantly,  or  at  times,  supplied  her.  Now  and  again 
the  man  may  give  to  the  woman  money  or  clothing,  with  the  object 
of  inducing  her  to  continue  her  services,  and,  with  fair  words,  a 
woman  is  ever  a  prey  to  a  designing  man.  The  protector  invari- 
ably manages  to  make  the  woman  indebted  to  him,  and  whenever 
he  fears  she  will  transfer  her  affection  to  another  in  honourable 
marriage  or  otherwise,  he  endeavours  to  dissuade  her  by  frightening 
her  with  false  unfounded  claims.  A  woman  living  with  a  man  as 
concubine,  mistress,  or  friend,  is  not  encouraged  in  the  eyes  of  the 
Customary  Law,  which  stamps  the  relationship  as  immoral,  to  be 
remedied  as  quickly  as  possible.  But  women  are  frail,  though  the 
desire  to  have  issue  is  keen  in  them,  and  men  are  deceivers  ever.  If  a 
man  therefore  will  not  be  properly  and  honourably  married  to  a 
woman,  but  will  for  his  own  purposes  keep  her  and  live  upon  her 
labour,  she  is  at  liberty  to  terminate  the  immoral  relation  at  any 
time  she  pleases,  and  she  shall  not  be  liable  to  return  to  him  any- 
thing whatsoever  he  may  have  given  or  entrusted  to  her  for  safe 
keeping,  sale,  or  any  purpose  whatsoever.  Where  a  person  living 
with  a  woman  as  his  concubine  wishes  to  marry  her,  he  is  bound 
to  pay  to  the  family  of  the  woman  satisfaction  money,  which  can  be 
waived,  before  giving  the  consawment,  and  if  in  consideration  of  the 
marriage  the  family  of  the  woman  or  she  herself  be  willing  to  return 
to  the  man  whatever  he  may  have  given  her  or  entrusted  her  with, 
the  amount  thereof  is  ascertained  by  the  man  and  woman  going 
into  detailed  accounts,  immediately  before  the  consawment  is 
given  and  accepted.  Such  a  marriage  legitimizes  the  children  of 
the  man  already  born  by  the  woman.  The  issue  of  an  adulterous 
connection  is  illegitimate,  and  cannot  be  made  legitimate  by  the 
subsequent  divorce  of  the  woman  and  her  marriage  with  her 
paramour;  e.g.  Amba,  wife  of  Kwamina,  during  his  absence  at 
Akassa,  bears  a  son,  the  issue  of  an  adulterous  intercourse  with 
Kwesi.  Such  son  is  illegitimate,  and  cannot  have  any  interest 
whatsoever  in  the  house  of  his  putative  father,  even  if,  on  being 
divorced  by  Kwamina  or  on  his  death,  Amba  is  married  by 
Kwesi. 

Although  a  man  may  lawfully  marry  several  wives,  a  woman 
cannot  at  the  same  time  have  more  than  one  husband.  Adultery 
is  a  ground  for  divorce,  and  a  wife's  adultery  justifies  her  husband 
in  expelling  her  from  his  house  and  refusing  her  any  maintenance. 
Notwithstanding  the  vague  ideas  in  the  coast  towns  about  divorce 


Chap.  XII,  §  1.]  FANTI   CUSTOMARY   LAW  339 

of  native  marriage,  there  is  no  doubt  that,  save  and  except  the 
competency  of  a  native  tribunal  to  decree  the  dissolution  of  a 
marriage,  the  right  of  divorce  is  marital  only.  The  wife  cannot 
declare  her  marriage  void,  nor  can  her  family  give  her  permission 
to  remarry  in  the  absence  of  the  consent  of  her  husband,  signified 
by  his  releasing  her  from  her  conjugal  obligation,  either  by  chalking 
her,  or  saying  so  in  the  presence  of  competent  witnesses.  For 
adultery  or  witchcraft  on  the  part  of  the  wife,  a  man  can  divorce 
his  wife  and  claim  from  her  family  the  consawment  and  other  ex- 
penses. But  the  wife  cannot  enforce  divorce  or  discontinue 
marriage  on  the  ground  of  her  husband's  adultery,  or  on  his  marry- 
ing more  wives. 

Change  of  religion  is  no  ground  for  divorce;  therefore,  if  a 
married  woman  embrace  Christianity  and  thereupon  deserts  her 
husband,  she  does  not  cease  to  be  his  wife,  and  whosoever  weds  her 
can  be  sued  for  damages.  By  the  term  ''ground  for  divorce,"  is 
meant  cause  for  which  the  husband  could  recover  the  consawment 
and  all  his  expenses  from  the  woman's  family ;  or  cause  for  which 
the  wife  and  her  family  would  not  be  compelled  to  return  any  por- 
tion of  the  consawment  to  the  man.  If  a  husband  is  impotent,  or 
neglect  his  wife  or  grossly  ill-treat  her,  or  absent  himself  for  a  long 
period  of  time,  so  that  she  commits  adultery,  he  can  divorce  her, 
but  cannot  recover  the  consawment;  for  a  wife  has  a  right  to  the 
protection  of  her  husband,  and  Customary  Law  does  not  counte- 
nance negligence  of  marital  obligations. 

There  is  no  law  on  the  Gold  Coast  similar  to  the  Indian  Act  XXI., 
of  1866,  the  Native  Converts  Marriage  Dissolution  Act,  under 
which,  if  a  married  person  deserts  his  wife  or  she  her  husband  for 
six  months  or  more,  on  the  ground  of  change  of  religion,  the  Court 
can  fix  a  year,  on  the  expiration  of  which,  if  the  defendant  still 
refuses  to  continue  the  marriage,  divorce  is  decreed.  In  our  native 
tribunals  a  husband  can  bring  an  action  against  a  man  harbouring 
a  wife,  and  against  her  family  for  her  recovery.  This  form  of 
action  is  well  known  in  India,  and  there  the  British  Courts  con- 
stantly enforce  decrees  to  recover  possession  of  wives  by  their 
husbands. 

C  A  woman  living  with  a  man  as  concubine  is  always  looked 
down  upon,  and  is  considered  immoral,  however  wealthy  she 
may  be^ 

Where  the  marriage  is  discontinued  through  the  fault  of  the 
husband,  so  found  by  arbitrators  or  a  native  tribunal  on  a  com- 
plaint made  again  him,  he  cannot  get  the  consawment  or  money  or 


340  RETARDED   PEOPLES  [Paet  II. 

any  of  his  expenses,  and  the  wife  goes  away  with  all  the  property 
she  possessed  at  the  time  of  marriage,  and,  in  addition,  she  is 
entitled  to  claim  from  him  whatever  she  or  her  family  may  have 
expended  on  him.  When  the  marriage  is  at  an  end,  the  wife  can 
demand  from  the  man  a  return  of  all  monies  and  goods  of  her  own  in 
his  possession.^  If,  on  the  other  hand,  it  was  through  the  fault  of 
the  wife  or  her  family,  the  consawment,  and  his  trinkets  and  cloth- 
ing, not  worn  out  in  the  service  of  the  wife  to  her  husband,  are 
returned.  Monies  expended  by  the  husband  for  the  maintenance 
of  his  wife  are  not  recoverable.  An  account  of  loans  advanced  to 
each  other,  as  well  as  of  funeral  donations,  is  gone  into  and  a  bal- 
ance struck,  on  paying  which  the  woman  is  free  to  contract  another 
marriage.^  On  the  death  of  the  husband  the  wife  is  bound  to 
contribute  towards  the  funeral  expenses.  Children  bear  the 
cost  of  the  coffin  and  burial  clothes  of  their  father,  but  are  not 
liable  for  the  expenses  of  the  funeral  custom.  They  have  the 
right  to  Hve  in  their  father's  residence  or  rooms,  provided  they  are 
of  good  behaviour.^ 

A  regrettable  departure  from  the  Customary  Law  relating  to 
the  recovery  of  the  consawment  on  the  determination  of  the  mar- 
riage is  becoming  somewhat  frequent  in  proceedings  before  the 
District  Commissioners.  In  many  cases  it  is  assumed  that  the 
mother-in-law  is  always  liable,  whereas  the  person  prima  facie 
liable  is  the  head  of  the  family,  or  person  who  acted  as  such  when 
the  consawment  was  paid.  When  a  woman  deserts  her  husband 
the  family  is  liable  for  all  the  property  suppHed  by  the  husband 
then  in  her  possession.^ 

A  child  receives  its  name  from  its  father  or  the  head  of  the 
father's  family,  eight  days  after  its  birth,  and  every  child  bears 
as  its  first  name  the  day  of  the  week  on  which  it  is  born.  Be  it 
noted  that  Saturday  (Miminda)  is  the  first  day  of  the  week,  and 
is  considered  as  God's  day.     The  natal  day  names  are  — 

1  Fatimer  v.  Wellington,  March  5,  1872,  "  Cape  Coast  Court  Reo- 
ord." 

2  Karaha  v.  Quansima,  May  17, 1871, "  Cape  Coast  Court  Record,"  p.  348. 
In  answer  to  the  Judicial  Assessor,  the  Chiefs  state  that  ''it  is  a  rule 
when  a  woman  refuses  to  continue  marriage  her  husband  recovers  his 
expenses.  If  she  leaves  from  her  husband's  misconduct  and  she  makes 
palaver,  and  gains  her  case,  the  husband  would  lose  his  claim  for  ex- 
penses."    And  judgment  accordingly. 

3  Barnes  v.  Mayan,  1  F.  L.  R.  180 ;  Swapim  v.  Ackuwa^  1  F.  L.  R. 
191 ;   Amamoo  v.  Clement,  1  F.  L.  R.  180. 

/  Sackie  v.  Agawa,  1  F.  L.  R.  126. 


Chap.  XII,  §  1.]                    FANTI   CUSTOMARY   LAW 

Male 

Saturday     .     .     . 

Kwamina,  Kwamin 

Sunday  .... 

Akwesi,  Kwesi 

Monday      .     .     . 

Kudwo 

Tuesday      .     .     . 

Akobina,  Kobina 

Wednesday      .     . 
Thursday    .     .     . 

Kweka 

Ekuow,  Kuow, 
Yow 

Friday    .... 

Kofi 

341 


Female 
Amba. 
Essi, 
Akosua. 
Adwua. 
Araba, 
Abina. 
Ekua. 
Abba, 
Ya,  Yawa. 
Effua. 


According  to  the  order  of  the  birth  a  child  may  receive  an  ad- 
ditional name ;  the  third  male  child  is  called  Mensa,  female  child 
Mansa.  Children  of  a  woman  bearing  the  same  natal  name, 
being  twins  or  otherwise,  are  distinguished  by  the  words  Penin 
(elder) ,  and  Kakraba  or  Kakra  (younger) .  Some  natal  names  have 
certain  endearing  synonyms  or  complimentary  salutations  attached 
to  them  :  e.g.  Adwua  as  Adai ;  to  Kobina  the  salutation  is  "Ebo 
Kobina  ye  bremba"  ("thou  art  a  brave  man,  Ebo  Kobina") ;  he 
replies,  "M'afe  na  wosi"  ("so  say  my  comrades") ;  to  a  Mensa's 
salutation,  "Abur  ampa"  ("ingratitude  still  lurks"),  the  reply  is, 
"Wo  oyimpa  tsirim"  ("in  the  head  of  man") ;  meaning,  no  doubt, 
one  does  not  easily  forget  ungrateful  conduct. 

"What  is  most  commendable  among  the  negroes  is  that  we 
find  no  poor  amongst  them  who  beg :  for  though  they  are  never 
so  wretchedly  poor,  they  never  beg.  The  reason  of  which  is, 
that  when  a  negro  finds  he  cannot  subsist,  he  binds  himself  for  a 
certain  sum  of  money,  or  his  friends  do  it  for  him ;  and  the  master 
to  whom  he  hath  obliged  himself,  keeps  him  in  all  necessaries, 
setting  him  a  sort  of  task  which  is  not  in  the  least  slavish,  being 
chiefly  to  defend  his  master  on  occasion,  and  in  sowing  time  to 
work  as  much  as  he  himself  pleases."  (Bosman's  Letter  ix. 
p.  140.) 

"Married  people  here  have  no  community  of  goods;  but  each 
hath  his  or  her  particular  property.  The  man  and  his  wives 
generally  adjust  the  matter  together,  so  that  they  are  to  bear  the 
charge  of  housekeeping,  while  the  clothing  of  the  whole  family  is 
at  his  sole  expense. 

"On  the  death  of  either  the  man  or  the  wife,  the  respective 
relations  come  and  immediately  sweep  away  all,  not  leaving  the 
widow  or  widower  the  least  part  thereof,  though  they  are  equally 


342  RETARDED   PEOPLES  [Part  II. 

obliged  to  help  to  pay  the  funeral  charges.  Some  negroes,  besides 
wives,  have  also  their  concubines,  which  they  several  times  prefer 
before  their  wives,  and  take  more  care  of  them ;  but  their  children 
are  esteemed  illegitimate,  and  not  reckoned  amongst  the  relations. 
"If  a  negro  has  a  child  by  his  slave,  whether  married  to  her 
or  not,  his  heir  will  look  after  it  and  keep  it  only  as  a  slave,  on 
which  account  those  who  love  their  slaves  will  take  care  to  make 
their  children  free,  with  the  usual  ceremonies,  before  they  die, 
after  which  they  are  in  every  particular  treated  as  free  persons. 

"  I  have  already  told  you  how  many  wives  the  negroes  marry ; 
and  herein  they  place  the  greatest  glory  and  grandeur,  as  their 
riches  consist  in  the  multitude  of  slaves,  though  they  frequently 
conduce  to  their  ruin,  because  every  man  is  obliged  to  make  good 
the  injury  which  his  slave  does ;  if  he  is  guilty  of  theft  or  adultery 
his  master  is  obliged  to  pay  the  fine  imposed  for  his  crime.  The 
negroes  are  also  responsible  for  their  sons,  nephews,  and  other 
relations,  though  in  this  case  the  relations  help  each  other  by  a 
mutual  contribution,  each  giving  something  towards  it  according 
to  his  circumstances;  which  if  he  should  not  do,  the  criminal 
would  be  condemned  to  death  or  slavery."  (Bosman's  Letter  xii. 
p.  202.) 

II.    PROPERTY  V 

Things  are  divided  into  moveables  and  immoveables. 
These  two  kinds  are  sub-divided  into  — 

(1)  Ancestral,  including  stool  property. 

(2)  Family. 

(3)  Self-acquired  or  Private. 
Moveables  :  e.g.  sandals,  cloth,  a  gold  ring. 
Immoveables  :  a  house,  land. 

Moveable  ancestral :  a  gold  ring  left  by  an  ancestor  or  ancestress. 

Moveable  family :  a  gold  ring  purchased  by  general  contribu- 
tion of  the  members  of  a  family. 

Self -acquired :  a  gold  ring  purchased  by  a  man  with  his  own 
earnings. 

Immoveable  ancestral :  a  house  or  land  which  has  descended 
from  an  ancestor  or  some  relative. 

Immoveable  family  :  a  house  built  or  acquired  by  members  of  a 
family. 

Self-acquired  or  private :  a  house  or  land  purchased  or  gained 
by  a  person  by  his  individual  effort  or  exertion. 


Chap.  XII,  §2.]  FANTI   CUSTOMARY   LAW  345 

There  are  certain  kinds  of  immoveable  things  which,  either 
from  their  nature  (as  a  fetish  grove,  pubHc  river  or  lake)  or  by 
reason  of  the  uses  to  which  they  are  put  (as  a  burial  grove),  can- 
not be  sold. 

The  acquisition  of  property  is  either  original  or  deriyative. 

Original  acquisition  may  be  by  — 

(1)  Appropriation  of  what  has  no  owner,  or  of  property  whose 
owner  has  plainly  expressed  his  intention  of  giving  up  and  has, 
in  fact,  given  up  his  ownership  by  leaving  possession. 

(2)  Conquest  or  capture  in  war. 

(3)  Accession  by  means  of  the  increase  or  development  of  a 
thing  in  one's  possession :  e.g.  crops  and  fruits  from  one's  land ; 
rent  of  property;  trees  planted  on  one's  land  by  any  person 
whatsoever  without  the  owner's  permission;  lands  gained  from 
the  sea  or  river,  either  by  alluvion  from  the  washing-up  of  mud, 
sand,  or  earth,  or  by  the  water  gradually  or  imperceptibly  receding. 

An  inundation  effects  no  change  of  property  in  land. 

Where  treasure-trove  is  found  on  some  one's  land,  the  owner 
of  the  land  is  entitled  to  a  moiety  of  such  treasure,  and  the  chief 
or  headman  of  the  district  to  the  other  moiety.  If  such  treasure 
was  there  hidden  by  the  owner  of  the  land,  the  finder  is  bound  to 
restore  it  to  its  owner  without  any  deduction  whatsoever. 

If  a  hunter  or  any  person  kill  game  on  another  man's  land, 
the  owner  of  the  land  is  entitled  to  the  shoulder  or  a  quarter  of 
such  game. 

Derivative  acquisition  may  be  by  — 

(1)  Transfer,  as  in  gifts. 

To  complete  a  transfer,  it  is  necessary  that  — 

(a)  The  transfer  be  by  the  owner  of  the  thing  transferred,  or 
by  one  duly  authorized  by  him.  Where  the  thing  transferred  is 
ancestral  or  family  property,  the  transferor  must  act  with  the 
concurrence  and  full  approval  of  the  senior  members  of  the  family 
having  an  interest  in  the  property. 

(6)  The  transferee  must  be  placed  in  possession  of  the  thing. 

(c)  The  nature  of  the  estate,  title,  or  interest  therein  trans- 
ferred must  be  distinctly  stated. 

(d)  The  transferee  must  show  his  acceptance  of  such  estate, 
title,  or  interest  in  the  thing. 

(e)  The  subject  of  transfer  must  be  capable  of  ownership. 
(J)  There  must  be  witnesses  of  the  transaction. 

(2)  Contract :  e.g.  sale,  mortgage,  lease,  or  loan. 

(3)  Succession  of  another's  property. 


344  RETARDED   PEOPLES  [Part  II. 

(4)  Partition :  on  the  division  of  ancestral,  family  or  other 
property  held  or  enjoyed  in  common. 

Ancestral  property  is  — 

(i.)  Any  moveable  or  immoveable  thing  which  has  descended 
to  a  person  from  an  ancestor  or  ancestress  however  remote. 

All  savings  made  out  of  such  moveable  or  immoveable  thing,  and 
all  purchases  or  profits  made  from  the  income  or  from  the  proceeds 
on  the  sale  thereof,  follow  the  character  of  ancestral  property. 

(ii.)  Property  acquired  on  partition  of,  or  in  exchange  for,  an- 
cestral property  {Mary  Barnes  v.  John  Mayan,  June  24,  1871). 
Per  Chalmers :  — 

"The  ground  on  which  Mrs.  Barnes  bases  her  right  is  that  the 
subject  in  question  was  given  by  Mr.  De  Graft  to  her  mother, 
who  was  one  of  his  wives,  and  was  occupied  by  her  as  a  dwelling- 
place.  It  appears  that  Mr.  De  Graft's  family  house  stood  formerly 
near  the  Castle ;  that  it  was  removed  as  well  as  other  houses  by 
order  of  the  Government,  at  a  time  when  that  part  of  the  town 
was  opened  up,  and  that  the  tenement  now  in  dispute  was  assigned 
by  the  Government  to  Mr.  De  Graft,  in  lieu  of  the  one  from  which 
he  had  been  dispossessed.  He  received  also  a  money  compen- 
sation for  the  building  which  it  may  be  presumed  he  laid  out  in 
the  construction  of  his  new  house.  These  things  being  so,  I 
consider  that  the  new  tenement  took  all  the  incidents  of  the  one 
for  which  it  was  substituted,  and  was  therefore,  in  De  Graft's 
lifetime,  in  the  same  position  as  if  it  had  been  land  of  inheritance 
to  which  he  had  actually  succeeded." 

(iii.)  All  accretions  of  any  ancestral  property.  A  person, 
whether  member  of  the  family  or  otherwise  in  possession  of 
stool,  ancestral,  or  family  property,  wishing  to  improve  or  make 
an  addition  thereto,  must  apply  to  or  inform  the  stool-holder  or 
head  of  the  family  for  his  permission  so  to  do,  and  if  no  objection 
is  raised,  he  acquires  a  right  to  the  prior  enjoyment  of  the  improve- 
ment or  addition  so  made,  which  is  not  liable  to  be  sold  for  a  stool 
or  family  debt  so  long  as  other  property  is  available,  otherwise 
not ;  for  it  is  not  lawful  for  persons  to  ignore  the  stool-holder  or 
the  head  of  the  family  and  deal  with  the  property  as  if  it  were 
their  own  absolutely. 

(iv.)  Property  earned  by  a  person  with  or  by  means  of  an  ances- 
tral property  or  its  accretions. 

(v.)  Property  which,  belonging  to  a  branch  of  a  family,  has 
come  into  the  possession  of  another  branch  of  the  family  on  the 
failure  of  a  successor. 


Chap.  XII,  §2.]  FANTI   CUSTOMARY   LAW  345 

Family  property  is  any  moveable  or  immoveable  thing  — 

(a)  Acquired  by  the  joint  labour  of  two  or  more  of  the  members 
of  a  family ; 

(6)  Or  by  contributions  from  the  members  of  a  family. 

Property  is  designated  self-acquired  or  private,  where  it  is 
acquired  by  a  person  — 

(a)  Through  his  own  personal  exertions,  without  any  help  or 
assistance  from  his  ancestral  or  family  property ; 

(6)  By  gift  to  himself  personally ; 

(c)  By  superior  skill  in  business  or  intellectual  pursuits. 

Whatever  a  person  acquires  with  the  aid  of  his  sister  or  her 
children  or  his  brothers  is  family  property.  If  his  children  by  a 
free  woman  (Dihi)  help  him  to  acquire  any  property,  they  have 
no  interest  therein,  and  in  the  absence  of  any  help  from  his  own 
family,  property  so  acquired  is  self-acquired  or  private.  What- 
ever a  wife  helps  her  husband  to  acquire  is  the  sole  property  of 
the  husband. 

If  any  property  lost  by  the  ancestor  or  any  of  his  successors 
be  recovered  by  a  member  of  the  family  out  of  his  own  private 
resources,  it  is  no  longer  considered  as  ancestral  or  family  property, 
but  is  private  property ;  unless  such  property  had  been  recovered 
by  the  use  of  any  part  or  portion  of  the  ancestral  or  family  patri- 
mony ;  or  it  was  acquired  for  the  purpose  of  its  forming  part  of 
the  ancestral  possessions,  and  this  was  made  known  to  the  mem- 
bers of  the  family.  With  the  exception  of  the  coast  towns,  where 
there  is  much  contact  with  European  ideas,  private  property  in 
its  strict  sense  does  not  exist.  The  family  group  is  of  the  pure 
patriarchal  type.  The  head  of  the  family  owns  the  whole  of  the 
property,  and  all  acquisitions  made  by  the  members  of  the  family 
are  made  for  him,  and  fall  into  the  common  stock.  This  custom 
obtains  in  all  parts  of  this  country. 

When  the  ancestral  or  family  property  is  owned  by  a  family, 
whether  whole  or  divided,  of  which  the  headman  sits  on  a  stool, 
then  the  property  is  known  as  stool  property,  and  is  attached  to 
the  stool.  As  the  family  increases  in  prosperity  and  influence, 
the  stool-holder  creates  junior  stools,  subordinate  to  the  head 
stool,  and  any  property,  attached  to  the  junior  stool  on  its  creation 
or  subsequently  acquired  or  possessed  by  the  junior  stool-holder 
and  the  people  of  that  stool,  is  also  called  stool  property. 

In  the  coast  towns  a  member  of  a  family  may  make  separate 
or  private  acquisitions  and  dispose  of  them  as  he  pleases  in  his 
lifetime,  provided  none  of  his  family  nor  any  part  or  portion  of 


346  RETARDED   PEOPLES  [Part  II. 

his  ancestral  or  family  property  contributed  to  the  acquisition  of 
such  property.  But  any  property  of  his  that  remains  undisposed 
of  at  his  death,  descends  to  his  successors  as  ancestral  property. 

As  in  India,  even  so  in  this  country,  the  advance  of  civilization 
tends  to  break  up  the  unity  of  the  family. 

Where  the  members  of  a  family  support  themselves  on  the 
produce  of  a  common  land,  the  proceeds  of  their  united  labour 
must  be  necessarily  small. 

The  family  has  a  claim  upon  its  constituent  members  for  their 
assistance  in  the  cultivation  of  the  common  land,  or  in  the  ordi- 
nary  labours  of  the  household ;  hence  it  is  no  matter  of  surprise 
to  find  the  units  breaking  up,  on  the  discovery  of  new  industries 
requiring  skill  and  producing  great  rewards,  and  giving  scope  to 
each  individual  unit  for  the  exercise  of  his  skill  and  ingenuity  in 
the  acquisition  of  wealth  and  private  property. 

In  this  country  joint  property  is  the  rule,  and  must  be  presumed 
to  exist  in  each  individual  case  until  the  contrary  is  proved.  If 
an  individual  holds  property  in  severalty  —  that  is,  as  sole  owner 
and  possessor  —  it  will  in  the  next  generation  relapse  into  a  state 
of  joint  tenancy. 

Absolute,  unrestricted,  exclusive  ownership,  enabling  the  owner 
to  do  anything  he  likes  with  his  immoveable  property,  is  the 
exception. 

The  father  is  restrained  by  his  brother,  the  brother  by  his 
nephew  and  sister's  children,  and  the  woman  by  her  own  issue. 
If  land  be  free  to-day  in  the  hands  of  its  acquirer,  it  will  to-morrow 
resume  its  fetters  in  the  hands  of  his  heirs.  In  the  English  law, 
individual  property  is  the  rule,  but  corporate  property  is  the  rule 
on  the  Gold  Coast  and  among  the  Akan  and  Fanti  tribes.  A 
careful  comparison  and  analysis  of  the  several  kinds  of  systems 
commonly  known  here,  show  that  there  are  but  three  forms  of 
corporate  system  of  property,  to  wit,  the  village  community,  joint 
family,  and  patriarchal  family. 

The  Village  community  is  a  corporate  body,  of  which  the  mem- 
bers are  families,  or  family  groups,  residing  in  the  several  house- 
holds, and  including  the  joint  as  well  as  patriarchal  families. 

These  village  communities  are  scattered  over  the  length  and 
breadth  of  the  whole  of  Guinea.  The  headman  of  the  village  is 
in  some  places  so  by  hereditary  right,  in  other  places  he  is  so  by 
election.  But  in  places,  where  the  right  is  hereditary,  the  mem- 
bers of  such  village  community  have  a  right  of  veto. 

The  Joint  family  is  a  corporate  body  whose  members  are  persons 


Chap.  XII,  §  2.]  FANTI   CUSTOMARY   LAW  347 

or  individuals  having  a  remote  common  ancestor,  or  who,  though 
ahen  in  blood,  have  become  members  of  the  same  clan  by  com- 
mendation or  otherwise.  ^ 

Patriarchal  family  is  defined  by  the  great  jurist  Sir  Henry 
Maine,  to  be  a  group-  of  natural  or  adoptive  descendants,  held 
together  by  subjection  to  the  eldest  living  ascendant  uncle,  father, 
or  grandfather.  Whatever  be  the  formal  prescriptions  of  the 
law,  the  head  of  such  a  group  is  always  practically  despotic ;  and 
he  is  the  object  of  respect,  if  not  always  of  affection,  which  is  prob- 
ably seated  deeper  than  any  positive  institution. 

In  the  more  extensive  assemblies  of  kinsmen  which  constitute 
the  joint  family,  the  eldest  male  of  the  eldest  line  is  never  the 
parent  of  all  the  members,  and  not  necessarily  the  first  in  age  among 
them.  To  many  of  them  he  is  merely  a  distant  relative,  and  he 
may  possibly  be  an  infant.  The  sense  of  patriarchal  right  does 
not  die  out  in  such  groups.  Each  father  or  grandfather  has  more 
power  than  anybody  else  over  his  wife,  children,  and  descendants ; 
and  there  is  always  what  may  be  called  a  belief  that  the  blood  of 
the  collective  brotherhood  runs  more  truly  and  purely  in  some 
line  than  in  any  other.  Among  the  Hindoos  the  eldest  male  of 
his  line,  if  of  full  mental  capacity,  is  generally  placed  at  the'head 
of  the  concerns  of  the  joint  family ;  but  where  the  institution 
survives  in  any  completeness,  he  is  not  a  paterfamilias,  nor  is  he 
owner  of  the  family  property,  but  merely  manager  of  its  affairs 
and  administrator  of  its  possessions. 

If  he  is  not  deemed  fit  for  his  duties,  a  worthier  kinsman  is 
substituted  for  him  by  election,  and,  in  fact,  the  longer  the  joint 
family  holds  together,  the  more  election  gains  ground  at  the  ex- 
pense of  birth  ("Early  History  of  Institutions,"  117). 

According  to  the  Fanti  laws,  a  father  has  in  subjection  under 
him  his  son  and  his  son's  children.  Whatever  is  acquired  is 
acquired  for  the  father,  and  this  state  of  subjection  doth  only  ter- 
minate on  the  father's  death.  In  a  patriarchal  family,  one  finds 
the  father  having  power  over  his  sons  and  daughters  and  grand- 
children, his  wife,  servants,  and  other  dependents.  If  on  his 
death  his  sons  separate,  this  will  be  the  setting  up  of  several  sub- 
ordinate families,  over  which  each  son  will  be  the  head,  but 
under  the  head  of  their  mother's  family. 

Under  the  system  of  village  community,  the  land  belonging  to\ 
the  village  is  so  held,  that  all  the  inhabitants  of  the  village  have/ 
each  of  them  a  proportionate  share  in  it  as  common  property/ 
without  any  possession  of,   or  title  to,  distinct  portions  of  ir. 


348  RETARDED  PEOPLES  [Part  II. 

Each  person  is  entitled  to  cultivate  any  portion  of  it,  and  during 
such  cultivation  he  has  an  absolute  right  to  his  crops. 

*In  the  joint  family  all  the  holdings  are  enjoyed  in  severalty, 
and  each  member  manages  his  portion  of  land. 

The  extent  of  such  holding  is  equal  to  the  land  originally  brought 
under  cultivation,  or  transferred  on  the  day  of  commendation,  or 
is  determined  by  long  usage. 

In  the  patriarchal  family  all  the  lands  are  under  the  control  of 
the  patriarch,  who  alone  directs  how  they  are  to  be  cultivated. 
He  is  entitled  to  all  the  produce  of  the  land,  and  nothing  can  be 
done  with  anything  belonging  to  the  family  without  his  approval 
or  confirmation. 

There  is  a  fourth  kind  of  corporate  system  of  property,  which 
may  be  called  the  "clan  property."  Property  of  this  nature  was 
originally  acquired  by  the  local  clansmen  clearing  the  virgin  forest 
and  afterwards  setting  it  aside  for  the  use  of  the  clan,  usually  in 
the  possession  of  one  of  the  principal  clansmen,  whose  duty  it  is 
to  look  after  it  for  the  benefit  of  all  the  clansmen  in  that  locality 
in  particular,  and  for  the  fellow-clansmen  in  general.  Hence  one 
hears  the  expression,  "The  land  (Asiasi)  is  the  property  of  the 
Okonor  clan."  Plots  of  such  lands  are  granted  to  members  of 
the  clan  desirous  of  building  thereon.  The  freehold  is  always  in 
the  senior  clansman  for  the  time  being  of  the  locality.  By  no 
length  of  uninterrupted  enjoyment  can  any  one  acquire  any  title 
adverse  to  the  title  of  the  whole  clan.  It  is  very  doubtful  whether 
the  clansmen  have  any  power  of  sale  over  any  part  or  portion 
whatsoever  of  such  clan  property.  Analogous  to  such  clan 
property  are  burial  groves,  or  places  set  apart  for  the  burial  of  the 
members  of  each  clan. 


III.   TENURES 

V  . 

The  ordinary  tenures  of  land  are  freehold,  and  the  derivative 

tenure  of  leaseholds. 

An  estate  of  freehold  is  an  estate  either  of  inheritance  or  for  life 
in  lands  of  free  tenure.  \. 

An  estate  in  lands  and  tenements  may  be  considered  — 

(i.)  In  reference  to  the  quantity  of  interest,  that  is,  whether 
freehold  or  less  than  freehold ;   or 

(ii.)  With  regard  to  the  time  of  enjoyment,  as  to  whether  the 
interest  is  in  possession  or  expectancy;   or 

(iii.)  With  regard  to  the  number  and  connection  of  the  tenants. 


Chap.  XII,  §  3.]  FANTI   CUSTOMARY   LAW  349 

The  term  "freehold"  denotes  the  tenure  of  the  property, and 
shows  that  the  owner  thereof  has  a  Hfe  estate  at  least. 

An  estate  of  inheritance  is  where  the  tenant  is  not  only  entitled 
to  enjoy  the  land  for  his  own  life,  but  where,  after  his  death,  it 
is  cast  by  the  law  upon  the  persons  who  successively  represent 
him  in  perpetuum  in  right  of  blood,  according  to  an  established 
order  of  descent. 

With  regard  to  the  quantity  or  duration  of  interest,  there  are 
estates  more  or  less  similar  to  English  estates  of  (i.)  fee-simple, 
(ii.)  for  life,  (iii.)  for  years. 

An  estate  in  fee-simple  is  the  largest  estate  or  interest  which 
the  English  law  allows  any  person  to  possess  in  landed  property, 
and  is  that  which  a  man  has  to  him  and  his  heirs.  The  holder  of 
such  property  is  called  a  tenant  in  fee-simple.  Strictly  speaking, 
the  term  "fee-simple,"  as  used  in  English  law,  cannot  be  correctly 
applied  or  used  when  speaking  of  the  highest  kind  of  the  tenures 
obtaining  on  the  Gold  Coast.  Even  in  those  parts,  such  as  Was- 
saw  Amenfi,  where  the  king  is  the  owner  of  all  the  lands  in  his 
district,  the  use  of  the  term  "fee-simple"  is  misleading.  At  the 
most  the  king  or  head  chief  is  but  a  trustee,  who  is  as  much  con- 
trolled in  his  enjoyment  of  the  public  lands  by  his  subordinate 
chiefs  and  councillors  as  the  head  of  a  family  by  the  senior  mem- 
bers thereof.  Per  Chalmers,  in  Barnes  v.  Attah,  July  17,  1871 : 
"I  apprehend  that  not  even  the  regular  occupant"  (of  an  Egua) 
"  could  alienate  property  without  some  concurrence  by  the  people 
of  the  stool  (Agua)  who  have  an  interest  in  it,  and  are  usually 
consulted  on  such  a  matter." 

The  king,  by  the  law  of  England,  is  the  supreme  lord  of  the 
whole  soil.  Whoever,  therefore,  holds  lands  must  hold  them 
mediately  or  immediately  of  him;  and  while  the  subject  enjoys 
the  usufructory  possession,  the  absolute  and  ultimate  dominion 
remains  in  the  king.     (Co.  Lit.  la.) 

As  far  as  the  Gold  Coast  is  concerned,  this  portion  of  the  Eng- 
lish law  does  not  apply,  for  it  is  a  group  of  territories  under  native 
rulers  taken  under  British  protection ;  it  is  British  territory,  but 
not  so  by  conquest  or  cession ;  as  a  matter  of  fact,  the  Colonial 
OflBce  stated  on  the  11th  day  of  March,  1887,  as  published  in 
Parliamentary  Blue  Book  of  that  year,  that  it  is  inaccurate  to 
state  that  after  the  successful  Asanti  expedition  of  1874,  the 
Protectorate  was  annexed  by  Great  Britain  and  became  a 
colony,  "inasmuch  as  the  greater  portion  of  the  Gold  Coast 
Colony  still  remains  a  Protectorate,  the  soil  being  in  the  hands 


350  RETARDED   PEOPLES  [Part  II. 

of  the  natives  and  under  the  jurisdiction  of  the  native 
chiefs." 

According  to  native  ideas  there  is  no  land  without  owners. 
What  is  now  a  forest  or  unused  land  will,  as  years  go  on,  come 
under  cultivation  by  the  subjects  of  the  stool,  or  members  of  the 
village  community,  or  other  members  of  the  family. 

The  granting  of  permission  to  others  and  outsiders  to  reside  on 
or  cultivate  the  lands  of  a  family,  a  stool,  or  a  village  community, 
is  a  practice  of  the  greatest  antiquity,  and  was  in  times  past  more 
universal  than  sale  of  land,  which  is  of  comparatively  modern 
growth.  The  chief  or  king  of  a  tribe,  or  headman  of  a  family, 
can,  with  the  consent  of  the  whole  or  major  part  of  the  sub-chiefs, 
and  councillors,  village  elders  forming  a  body  of  councillors  or 
senior  members  of  the  family,  as  the  case  may  be,  allow  strangers 
and  foreigners  to  live  on  certain  lands.  In  cases  where  the  land 
is  appurtenant  to  the  stool  of  a  king  or  head  chief,  the  tenant  be- 
comes subjected  to  such  stool,  and  he,  with  his  people,  is  bound 
to  perform  such  services,  or  pay  such  annual  sums  as  may  be  de- 
clared to  be  performed  or  paid  yearly.  Plots  of  land  in  the  actual 
and  lawful  possession  of  a  subject  of  the  stool,  or  a  member  of 
the  village  community,  or  a  member  of  the  family  or  company, 
cannot,  unless  with  the  express  consent  of  the  person  in  possession, 
be  so  granted.  But  where  a  person  in  possession  of  a  portion  of 
the  public  land  abandons  it,  or  his  family  have  abandoned  it  for 
more  than  ten  years  at  least,  the  village  headman  and  elders  can 
allow  another  person  to  occupy  the  same. 

The  making  of  grants  to  strangers,  particularly  to  Europeans, 
of  waste  lands,  that  is,  lands  abandoned  or  never  under  cultiva- 
tion by  any  one,  and  of  minerals,  and  of  concessions  of  forest  land 
for  a  term  of  years,  though  said  to  be  modern  comparatively 
speaking,  is  not  necessarily  illegal,  according  to  Customary  Law. 
A  person  who  desires  to  procure  a  grant  of  land  or  any  conces- 
sion from  a  local  ruler,  should  make  special  inquiries,  and  inform 
himself  who  the  members  of  his  council  are,  and  get  them  or  the 
linguist  of  the  council  to  join  the  head  chief  in  making  such  grant. 
Where  the  concession  is  made  by  a  subordinate  chief,  inquiries 
should  be  made  to  find  out  whether  the  concurrence  of  his  para- 
mount chief  is  necessary  or  no,  for  whatever  lawful  grant  or  per- 
mission is  so  given  by  a  person  de  facto  chief,  with  the  concurrence 
of  men  de  facto  members  of  the  village  council  or  stool,  is  good  and 
valid  according  to  Customary  Law,  and  the  grantee  by  taking 
possession  of  the  land  and  working  thereon  becomes  a  tenant  of 


Chap.  XII,  §  3.]  FANTI   CUSTOMARY   LAW  351 

the  stool,  village  council,  or  family,  as  the  case  may  be,  and  not 
of  a  specific  individual.  Among  European  communities  the  title 
of  a  landlord,  or  vendor,  or  grantor  of  property,  is  sought  for  by 
searching  his  muniments  of  title  and  making  an  abstract  of  his 
title-deeds ;  on  the  Gold  Coast  one  has  to  make  careful  inquiries, 
which  must  be  guided  by  the  Customary  Law.  The  occupant  of 
the  stool,  or  head  of  the  village  community  or  family,  as  trustee, 
has  the  right  to  enforce  performance  of  the  conditions  under  which 
the  permission  was  given.  If  the  tenant  fails  so  to  do,  or  denies 
the  right  of  the  person  who,  or  whose  predecessors,  gave  him 
title,  or  encourages  some  other  person  to  contest  such  right  or 
title,  he  can  be  sent  away  from  the  land. 

Conveyance  of  land  is  invariably  made  in  the  presence  of  wit- 
nesses. The  symbolic  tokens  and  ceremonious  performances, 
taken  in  addition  to  the  words  expressed  before  such  witnesses, 
set  forth  the  nature  of  the  transaction,  the  quality  of  the  estate 
granted  or  transferred,  and  the  conditions,  if  any,  of  such  grant. 

There  are  certain  well-established  usages  in  the  enjoyment  of 
lands,  one  of  which  is  the  practice  of  allowing  plots  of  land  to  lie 
fallow  for  a  longer  or  lesser  period  of  time. 

It  must  be  borne  in  mind  that  no  person  can  acquire  by  long 
uninterrupted  possession,  an  adverse  title  against  the  owner  of 
property,  through  whom  or  whose  ancestors  possession  was  first 
acquired. 

The  simplest  and  most  common  kind  of  tenure  is  what  may  be 
called  "sowing  tenure."  Here,  the  owner  of  a  plot  of  land  usually 
gives  to  a  person,  who  has  applied  to  him,  leave  to  have  the  use 
of  his  land  for  one  sowing  season.  In  the  absence  of  agreement, 
the  owner  of  the  land  is  entitled  to  take  500  heads  of  corn,  or  a 
small  proportion,  about  one-tenth,  of  any  other  crops  grown  on 
such  land. 

If  the  tenant  die  before  his  crops  are  gathered,  his  heir  or  suc- 
cessor is  entitled  to  reap  them,  and  the  owner  of  the  land  cannot 
appropriate  such  crops,  without  giving  notice  to  the  representa- 
tives of  the  deceased,  to  the  effect  that  the  crops  must  be  removed 
before  the  end  of  the  harvest  season,  or  before  the  festival  Ahuba 
Kessi.  Having  once  sown  his  crops,  the  tenant  cannot  sow  a 
second  crop  on  any  part  of  the  grantor's  land  without  his  express 
permission,  for  as  soon  as  the  crops  are  gathered  in  the  tenancy 
ceases. 

Where,  after  notice,  the  tenant's  crops  are  not  removed,  such 
crops  become  the  property  of  the  owner  of  the  land. 


352  RETARDED   PEOPLES  [Pabt  II. 

There  is  also  known  what  may  be  called  an  "annual  tenure'' 
running  from  year  to  year. 

A  person  having  once  got  the  land  has  full  right  to  cultivate 
it  for  any  duration  of  time  until  the  owner,  by  due  notice,  termi- 
nates the  tenancy. 

The  rent  usually  reserved,  in  the  absence  of  special  or  other 
agreement,  is  the  help  which  the  tenant  is  bound  to  render  the 
landlord  at  the  period  or  seasons  of  sowing  and  reaping,  usually 
three  days  in  the  week. 

Unlike  the  sowing  tenure,  the  tenant  has  the  right  to  build 
and  reside  on  land  so  granted  him.  On  his  death,  his  heir  or  suc- 
cessor, after  notifying  the  owner  and  after  certain  ceremonies, 
acquires  the  same  rights  and  privileges  until  the  landlord  gives 
notice  to  terminate  the  tenancy,  when  the  land  goes  back  to  the 
owner  with  all  the  improvements  thereon.  But  the  owner  of 
the  land  is  not  entitled  to  such  crops  as  are  sown  and  reaped 
yearly,  unless  the  tenant  has  failed  to  remove  them  after  due 
notice.  Where  the  owner  of  land  gives  to  a  person  permission 
to  cultivate  a  portion  of  his  land,  and  this  person  and  his  heirs 
continue  the  cultivation  of  such  land,  for  upwards  of  forty  years, 
without  paying  any  rent  or  giving  any  produce  therefrom  to  the 
owner,  such  long  possession  does  not  destroy  the  title  of  the 
original  owner  and  his  representatives. 

The  original  owner  or  his  successor  can  at  any  time  go  upon 
and  retake  possession  of  the  land  as  soon  as  the  tenant  asserts  an 
adverse  claim  to  it.  In  the  absence  of  such  adverse  claim  he  can- 
not disturb  the  quiet  enjoyment  of  the  tenant,  without  prior  notice 
to  the  tenant  that  he  requires  the  land.  Where,  however,  there 
are  palm-trees  on  the  land,  whether  planted  by  the  owner  of  the 
land  or  by  the  tenant,  the  landowner  has  full  right,  at  any  time 
he  pleases,  to  cut  trees  or  gather  any  nuts  therefrom.  Custom 
does  not  permit  any  person  to  be  improved  out  of  his  land,  and 
palm-trees  not  only  improve,  but  also  enhance  the  value  of,  lands. 

Where  the  nuts  from  a  palm  land  are  manufactured  into  oil, 
the  owner  of  the  land  receives  half  of  the  oil,  and  the  oil  manu- 
facturer the  other  half,  and  the  expenses  of  preparing  the  oil  is 
equally  shared  by  them.  If,  instead  of  oil  manufacture,  there  is 
extracted  from  the  palm-trees  palm-wine,  then  the  owner  of  the 
palm-trees  is  entitled  to  one-fourth  of  the  proceeds  of  such  palm- 
wine,  the  person  who  fells  the  trees  and  prepares  the  wine  is  en- 
titled to  one-fourth  of  such  proceeds,  and  the  person  who  sells 
such  palm-wine  is  entitled  to  half  of  such  proceeds.     According 


Chap.  XII,  §  3.]  FANTI  CUSTOMARY   LAW  353 

to  a  well-known  practice  of  the  law  courts,  each  palm-tree  is 
valued  at  twenty  shillings. 

Abehem  tenure  arises  where  a  person  is  placed  on  palm  land, 
and  the  only  stipulation  is  for  a  specified  quantity  of  oil  to  be 
delivered  to  the  owner  each  year,  whether  the  tenant  makes  any 
oil  or  not  during  the  year. 

In  the  absence  of  agreement,  an  owner  of  land,  from  persons 
having  the  use  of  his  land,  is  entitled  to  claim  when  corn  is  planted 
500  heads. 

Grants  of  land  for  building  purposes  are  very  frequently  made 
in  the  form  of  perpetual  leases,  either  for  some  valuable  considera- 
tion, or  by  way  of  reward  for  past  services,  or  on  the  ground  of 
mere  affection  or  friendship.  Lands  so  granted  are  resumable 
by  the  grantor  and  his  successors  on  failure  of  successors  in  the 
grantee's  family.^ 

Land  so  granted  is  inalienable,  except  with  the  express  consent 
and  concurrence  of  the  grantor,  if  it  be  his  self-acquired  property ; 
but  if  ancestral  or  family  property,  then  the  consent  of  the  persons 
entitled  to  the  reversion,  and  who  have  an  interest  in  it,  and  who 
are  usually  consulted  before  any  alienation  is  made,  must  be  gained. 

The  grantee  of  a  building  lease  does  not  acquire  any  right  in 
the  soil.^ 

Grants  of  land  for  building  purposes  are  generally  made  by 
members  of  a  family  to  a  junior  member  at  the  time  of  marriage. 
Thus  a  man  takes  in  marriage  a  woman.  The  members  of  her 
family  give  or  point  out  to  the  husband  a  plot  of  land  to  build 
on,  and  the  only  object  of  this  is  that  the  man  may  have  some- 
where to  reside  with  his  wife  and  any  issue  of  the  union. 

The  rule  of  the  descent  with  regard  to  any  erections  on  such 
lands  is  somewhat  similar  to  what  is  known  in  English  law  as 
tenancy  in  tail  special.  The  grant  is  invariably  made  to  a  man 
and  his  issue  (not  heirs)  —  say,  on  Essie,  his  wife  begotten  or  to 
be  begotten.  Whatever  is  erected  on  such  land  goes  to  Essie 
and  her  children  by  him.  For  all  practical  purposes,  the  man 
has  only  a  hfe  interest,  which  he  forfeits  by  wrongfully  and  im- 
properly terminating  the  marriage. 

The  man's  heir  or  successor  has  no  title  or  interest  in  such 
premises,  nor  can  he  himself  sell  or  mortgage  them. 

If  the  land  was  granted  by  the  family  of  the  man  to  him  for 
building  purposes,  then  neither  his  freeborn  wife  nor  her  issue  has 

1  Bonn  V.  Steele,  2  F.  L.  R.  77. 

2  Lyall  V.  Dougan,  2  F.  L.  R.  56. 


354  RETARDED   PEOPLES  [Part  II. 

title  or  claim  to  the  ownership  of  such  premises,  but  his  children 
by  her  have  only  a  right  of  residence  in  the  father's  house,  i.e.  a 
life  interest  subject  to  good  conduct.^ 

Land  so  granted  for  building  purposes  reverts  to  the  grantor 
and  his  family  — 

(a)  On  the  grantee  quitting  possession ; 

(b)  On  the  grantee  denying  the  title  of  the  grantor  to  the  land 
by  setting  up  his  own  title  or  the  title  of  any  other  person ; 

(c)  On  the  building  erected  thereon,  or  the  greater  part  of  such 
building,  falling  into  ruins ;  ^ 

(d)  On  the  grantee  leaving  no  issue  by  the  woman  on  whose 
marriage  with  him  or  through  whom  the  grant  was  originally 
made; 

(e)  By  purchase  of  the  building  erected  thereon. 

The  woman  is,  however,  entitled  to  live  in  such  buildings  as 
may  have  been  erected  by  the  husband. 
The  right  of  the  grantor  is  lost  by  — 

(a)  Gift  or  sale  of  the  freehold  to  the  grantee ; 

(b)  Sale  of  the  land  by  the  grantor  to  any  person ; 

(c)  Death  of  the  grantor  without  heirs  or  any  successor. 

If  the  grantee  erects  any  building  on  land  so  granted,  and  he 
desires  to  sell  such  building,  there  being  failure  of  issue  by  his 
wife  then  deceased,  the  grantor  or  his  successor  has  an  absolute 
right  of  having  the  first  offer. 

Where  the  grantee  has  issue  by  the  wife,  through  whom  he 
came  into  possession,  he  cannot  sell  premises  erected  on  land  so 
granted  without  the  concurrence  of  his  wife  and  his  children  by 
her. 

If  such  premises  be  sold  without  the  consent  of  the  grantor  or 
his  successor  and  family,  but  only  with  the  concurrence  of  wife 
and  children,  the  purchaser  acquires,  at  the  most,  only  a  life  in- 
terest, and  can  only  enjoy  the  property  during  the  life  of  the 
grantee,  his  wife,  and  their  children,  for  as  soon  as  they  all  die, 
the  grantor  or  his  successor  is  entitled  without  any  interruption 
to  take  back  the  land,  without  paying  any  compensation  what- 
soever for  any  improvements  made  or  for  any  buildings  thereon 
erected. 

And  not  only  is  the  grantor  or  his  successor  entitled  to  the 
first  offer,  but  he  is  entitled  to  demand  from  the  purchaser  an 
acknowledgment,  that  the  land  is  not  the  property  of  the  person 

^  Swa-pim  v.  Ackuwa,  1  F.  L.  R.  191. 
2  Awortchie  v.  Aidgun,  2  F.  L.  R.  56. 


Chap.  XII,  §3.]  FANTI   CUSTOMARY   LAW  355 

who  built  the  premises.  This  acknowledgment  may  be  made  by 
payment  of  money  or  by  giving  any  token. 

If  the  grantee  or  purchaser  neglect  or  refuse  to  render  the 
acknowledgment,  or  to  pay  any  reserved  rent,  he  must  remove 
his  buildings  and  quit  the  land.  The  creditors  of  the  owner  of 
the  buildings  can  at  any  time  pull  down  the  buildings  and  remove 
the  materials  in  satisfaction  of  their  claim.  Therefore,  where  the 
owner  of  land  gives  leave  to  a  person  to  build,  the  maxim  quic- 
quid  plantatur  solo,  solo  cedit,  doth  not  apply,  and  even  if  the 
materials  were  acquired  from  the  land,  and  the  occupier  unsuc- 
cessfully contests  the  right  of  the  owner,  yet  he  can  pull  down 
the  houses,  when  he  is  being  turned  out,  or  he  is  voluntarily 
leaving.^ 

It  is  a  well-estabHshed  custom  that  no  one  should  be  improved 
out  of  his  land,  and  also  that  family  and  ancestral  properties  must 
not  be  alienated  except  for  well-recognized  reasons. 

Where  family  or  ancestral  property  has  been  alienated  for 
value,  the  original  owners,  or  those  descended  from  them,  can 
repurchase  such  property,  provided  the  proper  sacrifice  is  offered, 
the  necessary  libations  are  made,  and  the  family  or  persons  in 
possession  are  not  residing  on  such  property  or  using  it.  If  a 
portion  of  the  land  has  been  set  apart  for  a  burial-place,  that  part 
need  not  be  reconveyed  to  the  family  of  the  original  owner  at  their 
request.  The  re-purchasing  of  such  property  is  called  Piin,  that 
is  Redemption.^  A  family  owning  or  in  possession  of  other  lands 
as  freeholders  in  the  same  neighbourhood,  cannot  compel  this 
kind  of  redemption,  and  a  long  period  of  time  does  not  bar  the 
right  to  such  recovery  of  ancestral  property.  This  kind  of  re- 
demption must  not  be  confounded  with  the  redemption  of 
mortgaged  or  pawned  lands. 

Owners  of  lands  where  gold  and  other  minerals  are  found  give 
permission  to  miners  to  work  thereon.  These  men  open  mines 
and  sink  several  shafts,  and  the  customary  rent  is  what  is  known 
as  Ebusa,  which  is  a  division  into  three  parts  of  whatever  the 
mines  produce,  whether  gold,  or  quartz,  or  other  minerals.  To 
the  landlord  belongs  one-third.  But  whenever  gold  nuggets  are 
found  in  such  mines  the  landlord  takes  one-half. 

The  owner  of  land  covered  with  timber  is  entitled,  in  the  ab- 
sence of  express  agreement,  to  one-third  of  all  logs,  beams,  and 
other  timber  felled  or  gotten  of  his  land.  And  generally  the 
owner  of  land  is  entitled  to  one-third  of  all  produce  gotten  of  his 

1  Wood  V.  Aisawa,  2  F.  L.  R.  51.       ^  Compare  Leviticus  xxv.  23-27. 


356  RETARDED   PEOPLES  [Part  II. 

land  by  his  tenants;  this  one-third  is  given  him  in  kind,  or  its 
value  paid  in  money,  as  the  owner  shall  direct. 

In  the  Wassaw  Amenfi  district  Tikororo  custom  prevailed,  that 
is,  King  Enimil  was  entitled  every  Saturday  during  the  mining 
season  to  be  paid  from  each  mining  shaft  a  measure  of  quartz, 
and  this  was  collected  on  each  Saturday  by  the  king's  servants. 

Grantees  or  their  successors  asserting  title  to  a  land  adverse 
to  the  grantor,  or  disputing  his  title,  forfeit  their  possession,  and 
may  be  ejected  at  once  from  the  land  by  the  grantor  or  his  suc- 
cessors. 

IV.  SURETYSHIP 

^Suretyship,  Eginam-dzi  or  Aba-su-dzi,  is  a  collateral  engage- 
ment by  a  person  to  be  responsible  for  the  debt  or  performance 
of  the  obhgation  of  anothery  The  person  who  undertakes  to  be 
so  responsible  is  called  the  surety,  Eginam-dzi  nymjM  or  Aha-su-dzi 
nyi.  To  constitute  vaHd  suretyship,  it  is  essential  to  have  the 
mutual  assent  of  all  the  parties,  namely,  the  creditor,  the  person 
secured,  usually  called  the  principal  debtor,  and  the  surety. 
These  three  parties  must  be  persons  competent  to  contract,  and 
they  must  do  so  with  the  necessary  formalities  and  ceremonies. 

However  much  a  person  may  like  to  stand  surety  for  a  prin- 
cipal debtor,  he  cannot  do  so  against  his  approval,  whether  such 
person  is  related  to  him  or  not.  The  creditor  also  must  assent 
to  the  suretyship,  and,  until  his  acceptance,  the  offer  to  be  so  Hable 
is  revocable.  Where  the  creditor  and  his  debtor  are  subjects  of 
the  same  stool,  or  members  of  the  same  village  community,  under 
the  same  headman,  chief,  or  king,  such  king,  chief,  or  headman 
cannot  be  a  surety,  and  any  engagement  on  his  part  to  be  respon- 
sible to  a  person  so  under  him  for  another  person  under  him  is 
void.  Likewise,  the  head  of  a  family  cannot  be  surety  to  a  mem- 
ber of  the  family  for  another  member  of  the  family.  But  where 
the  creditor  belongs  to  a  different  family,  even  though  of  the  same 
clan,  the  head  of  the  family  can  become  surety  for  a  member  of 
the  family  to  the  creditor.  Insane  persons  and  lunatics  cannot 
be  sureties.  If  a  person,  through  intoxication  or  by  duress,  be- 
come a  surety,  he  can  avoid  his  responsibility  by  acting  promptly, 
and  caUing  upon  the  creditor  to  release  him  from  his  obhgation, 
otherwise  his  acquiescence  will  bar  his  release.  A  married  woman 
cannot  without  the  consent  of  her  husband  become  surety  for  any 
person  whatsoever,  save  and  excepting  her  parents  and  children. 
Except  with  its  mother  or  other  immediate  blood  relatives,  an 


Chap.  XII,  §  4.]  FANTI   CUSTOMARY   LAW  357 

infant  can  never  become  surety.  The  liability  of  a  suret}^  to 
answer  for  the  debt  of  another,  or  for  the  consequences  arising 
from  failure  of  the  performance  of  his  principal's  obligation,  is  a 
personal  responsibility,  and  does  not  bind  the  surety's  family  or 
his  successors.  When  a  man  becomes  surety  none  of  his  children 
are  bound  by  his  contract,  except  such  as  joined  in  the  contract 
with  the  consent  of  their  mother  or  her  family.  Although  there 
may  be  slight  variations  in  some  localities,  there  is  always  a 
promise  made  or  oath  taken  by  the  principal  debtor  to  the  pro- 
posed surety,  that  on  such  and  such  a  day  he  will  hand  to  the 
surety  the  amount  in  question,  or  that  before  the  expiration  of  the 
specified  day  the  contract  will  be  performed ;  e.g.  A  requiring 
2  ackies  goes  to  B,  who  agrees  to  give  it  him  on  his  finding  a  surety. 
C  consents  to  guarantee  the  amount.  To  complete  this  contract 
there  must  be  witnesses,  in  whose  presence  B  counts  the  money 
and  places  it  in  the  hands  of  C,  who  passes  it  to  A.  Immediately 
before  or  after  the  receipt  of  the  money,  A  has  to  promise  C,  or 
take  oath  in  the  presence  of  these  witnesses,  that  he,  A,  will  repay 
C  the  loan  on  the  day  fixed,  so  that  he,  C,  may  pay  B.  If  A  has 
sureties,  whether  members  of  his  family  or  otherwise,  each  of 
them  makes  the  same  promise  or  takes  an  oath  to  the  same  effect. 
After  this  C  also  promises  B,  or  takes  oath,  that,  on  the  day  speci- 
fied, he  will  see  A  repay  B  the  loan,  or  he,  C,  will  make  it  good. 
Where  C  also  has  sureties,  each  of  them  promises  B,  and  takes 
oath  to  the  same  effect,  each  promissor  in  his  turn  calls  the  wit- 
nesses to  take  note  of  what  is  going  on.  The  witnesses  are  usually 
invited  by  the  creditor,  debtor,  and  surety  respectively,  and  in 
their  presence  the  considerations  must  be  distinctly  stated.  After 
the  creditor  has  consented  to  accept  C  as  surety  for  A,  a  sum  of 
money  or  chattel  is  given  to  the  witnesses  as  token  of  the  con- 
tract. If  there  are  persons  who  "stand  behind"  the  surety  to  ensure 
the  due  performance  of  his  guarantee,  they  do  not  always  expressly 
make  any  promise  or  take  any  oath,  the  surety  C  merely  saying 
to  the  creditor,  'Hhese  stand  behind  me,"  i.e.  they  are  my  sureties. 
Money  or  token  given  to  the  witnesses  is  added  to  the  debt  of  the 
debtor. 

In  default  of  payment,  the  remedy  of  the  creditor  is  against 
the  surety  in  the  first  instance,  and  not  against  the  debtor.  It  is 
only  where  the  surety  cannot  be  found,  or  he  fails  to  pay,  that  the 
creditor  can  sue  the  debtor,  for  then  it  is  certain  that  the  debtor 
had  failed  to  keep  his  solemn  promise  to  the  surety.  It  is  the 
duty  of  the  debtor  to  perform  his  solemn  stipulation,  and  to  see 


358  RETARDED   PEOPLES  [Part  II. 

that  his  surety  does  not  fail  in  doing  likewise,  for  the  debtor  should 
know  more  of  his  surety  than  the  creditor.  Where  there  are  several 
sureties  for  one  specific  sum  of  money,  they  are  jointly  liable,  and 
each  cannot  be  made  to  pay  more  than  a  proportion  of  the  debt. 
Where  the  creditor  makes  further  arrangement  with  the  debtor, 
unknown  to  the  surety,  or  without  his  consent,  or  grants  him 
more  time,  or  instigates  the  debtor  to  run  away  or  so  deal  with 
his  property,  that  the  surety's  means  of  faUing  on  it  to  recoup 
himself  is  lost,  the  surety  is  discharged.  Where  a  creditor,  by 
fraud,  or  misrepresentation,  induces  a  man  to  become  surety  for  a 
debtor,  the  contract  is  void.  A  person  does  not  become  a  surety 
by  merely  interceding  for  a  debtor.  At  the  time  of  accepting  the 
guarantee,  the  creditor  is  to  give  the  surety  some  money,  varying 
in  amount  from  a  takoo,  or  ninepence,  to  an  ounce  of  gold  (£3  12s.), 
to  bind  the  contract  of  suretyship. 

When  the  surety  wishes  to  strengthen  his  claim  on  the  debtor's 
relations,  the  debtor  is  usually  joined  by  his  brothers  and  nephews, 
the  younger  ones  being  preferred,  as  in  the  ordinary  course  of 
nature  the  younger  ones  may  live  longest.  In  order  that  the 
debtor  may  expeditiously  fulfil  his  contract,  it  has  long  been 
customary  for  a  child,  relative,  or  servant  of  the  debtor,  to 
live  with  the  surety,  and  in  the  event  of  the  death  of  the  debtor, 
the  fact  of  such  a  person  residing  with  the  creditor,  or  surety, 
is  a  strong  proof  to  the  debtor's  family  of  the  existence  of 
the  debt. 

This  custom  is  quite  distinct  from  pawning  (Ahaha).  A  per- 
son placed  in  pawn  is  not  personally  liable  for  the  debt,  although 
in  temporary  bondage  to  the  creditor,  and  as  such  he  cannot 
acquire  any  property,  which  will  belong  to  the  creditor.  The 
death  of  the  pawn  does  not  cancel  the  debt  and  he  must  be  replaced. 
But  in  the  case  of  Eginam-dzi  (suretyship),  the  co-surety,  i.e.  the 
person  ''standing  behind,"  is  personally  liable  for  the  settlement, 
and  while  remaining  with  the  creditor  he  can  acquire  property  or 
earn  means  to  liquidate  the  debt.  The  creditor  may,  though  not 
bound,  maintain  him,  and  if  he  does  maintain  him  he  can  add  the 
expenses  thereof  to  the  debt,  unless  the  co-surety  gives  his  services 
in  return. 

The  surety  has  a  right  to  fall  on  the  debtor  to  repay  him  all 
monies  he  may  have  paid  to  the  creditor,  together  with  any  ex- 
penses and  disbursements  incident  thereto.  A  surety  is  not 
entitled  to  the  benefit  of  any  set-off  the  principal  debtor  may  have 
against  the  creditor,  unless  by  express  agreement. 


Chap.  XII,  §  5.]  FANTI  CUSTOMARY   LAW  359 

V.  ALIENATION  ^ 

Alienation  of  property  may  be  by  (i.)  gift,  (ii.)  mortgage  or 
pledge,  (iii.)  loan,  (iv.)  sale,  or  (v.)  testamentary  disposition,  and 
any  property  about  to  be  alienated  should  be  so  described  and 
defined  that  there  can  be  no  reasonable  doubt  as  to  its  identity. 

The  head  of  a  family  has  greater  powers  of  alienation  over  move- 
able ancestral  property  than  he  has  over  immoveable  ancestral 
and  family  property. 

He  can  alienate  the  former  in  gifts  to  any  of  the  members  of 
the  family,  or  for  their  education,  support,  or  rehef  from  distress,, 
or  for  starting  In  trade  or  business,  or  for  getting  a  wife  for  any 
member. 

Whenever  there  is  a  stool  or  family  debt,  the  stool  or  family 
property,  whether  moveable  or  immoveable,  can  be  taken  and  sold 
to  pay  such  debt.  And  where  the  members  under  the  stool  or  of 
the  family  refuse  or  are  unable  to  pay  such  lawful  liability,  the 
stool-holder  or  head  of  the  family  can,  after  due  notice  to  the 
senior  members  of  the  stool  or  family,  with  or  without  their  con- 
currence, mortgage  or  pledge  any  stool  or  family  property.^ 

Amid  all  the  conflict  of  contradictory  accounts  which  meet 
one  at  every  turn,  it  is  nearer  the  mark  to  say,  th^^JJifiJiead-oLth^ 
family  has  the  moveable  ancestral  property  in  his  absolute  cout 
trol ;  if,  therefore,  the  family  find  he  is  misappropriating,  wasting, 
or  squandering  the  ancestral  fund,  it  is  to  their  interest  to  remove 
hipa  at  once  and  appoint  another  in  his  stead. 

The  head  of  a  family  cannot,  without  the  consent  of  all  the 
principal  members  of  the  family,  or  the  greater  part  thereof,  that 
is  the  Ebusuafu,  alienate  the  immoveable  ancestral  or  family 
property.^ 

And  although  an  alienation  may  be  necessary  for  some  family 
purpose,  or  for  the  discharge  of  a  family  obligation,  nevertheless, 
unless  confirmed  by  the  senior  or  principal  members  of  the  family, 
such  alienation  is  revocable. 

Neither  the  head  of  the  family  acting  alone,  nor  the  senior 
members  of  a  family  acting  alone,  can  make  any  valid  alienation 
nor  give  title  to  any  family  property  whatsoever. 

Any  person  buying  or  advancing  money  on  any  property  should 
carefully  inquire  whether  the  property  is  ancestral,  or  family,  or 
private.     If  he  find  from  his  inquiries  that  it  is  not  of  the  last 

1  Aidoasi  v.  Ahhan,  2  F.  L.  R.  90. 


360  RETARDED   PEOPLES  [Part  II. 

description,  he  is  bound  to  inquire  into  the  necessity  for  the  ahen- 
ation,  and  find  out  whether  all  the  beneficiaries  are  parties  to  the 
transaction ;  whether  such  alienation  benefits  the  estate  or  family ; 
and  in  cases  where  the  property  is  in  a  stranger's  possession, 
whether  the  senior  members  of  the  family  have  received  notice 
of  such  transaction.  Pandy  v.  Koonwaree,  6  Moore's  Indian  Ap- 
peals, 423 :  — 

"The  court  will  consider  whether  the  debt  for  the  discharge  of 
which  the  alienation  is  alleged  to  have  taken  place,  has  been  in- 
curred owing  to  misfortune,  an  income  inadequate  for  the  ordinary 
expenditure  of  a  person  in  the  position  of  the  person  incurring  the 
debt,  or  antecedent  mismanagement  of  other  managers;  or,  on 
the  other  hand,  whether  it  is  owing  to  profligacy  and  wanton 
waste  of  the  estate  on  the  part  of  the  alienor;  and  if  the  latter 
state  of  facts  be  proved,  the  court  will  scrutinize  rigidly  to  see  if 
the  person  advancing  the  money  was  in  any  way  a  party  to  such 
profligacy  or  wanton  waste,  and  if  it  be  shown  that  he  was  so  cog- 
nizant of  or  a  party  to  it,  the  court  will  not  deem  the  alienation 
to  have  been  lawful."  Thus  decided  their  lordships  of  the  Queen's 
Privy  Council,  and  it  is  worthy  of  remark,  that  in  the  native 
tribunals  the  purchaser  of  ancestral  family  or  stool  property 
must  have  clean  hands,  if  he  is  to  retain  possession  of  such 
property. 

Where  money  has  been  advanced  for  the  purpose  of  discharging 
an  ancestral  or  a  family  debt,  and  the  members  of  the  family  have 
parted  with  their  ancestral  or  family  property  in  satisfaction  of 
such  advance,  such  alienation  is  valid,  if  the  alienee  is  able  to 
show  that  he  acted  bond  fide;  that  in  truth  and  in  fact,  the 
money  advanced  was  for  the  discharge  of  an  ancestral  or  family 
debt;  and  that  on  ndependent  inquiry  he  was  satisfied  it  was 
an  ancestral  or  family  debt  from  which  it  was  necessary  to  relieve 
them. 

Whenever  the  alienation  of  any  property  is  set  aside,  the  alienee 
is  entitled  to  get  back  his  purchase-money  from  the  person  who 
received  it,  and  where  the  person  at  whose  instance  the  alienation 
was  set  aside  has  had  some  benefit  from  the  purchase-money,  he 
will  be  bound  to  refund  the  whole  or  lose  his  suit.  Awortchie  v. 
Eshon,  March  7,  1871. 

But  where  the  alienee  fails  to  prove  facts  which  would  justify 
a  refund  of  the  purchase-money,  he  loses  his  money. 

If,  however,  part  of  the  alienation  is  found  to  be  justifiable  and 
a  part  not,  then  the  alienee  will  be  entitled  to  the  part  upheld. 


Chap.  XII,  §  5.]  FANTI   CUSTOMARY   LAW  361 

(a)  Gift   t^    C^MM^^MJ^  K^yy'^ 

Gift  consists  in  the  relinquishment  of  one's  own  right  and  the 
creation  of  the  right  of  another,  in  lands,  goods,  or  chattels,  which 
creation  is  only  completed  by  the  acceptance  of  the  offer  of  the  gift 
by  that  other.  ^ 

It  must  be  remembered,  however,  that  gifts  are  oftener  made  of 
moveables  such  as  goods  and  chattels,  than  of  lands  and  other 
immoveables.^ 

To  constitute  a  valid  gift,  an  intention  of  giving  or  passing  the 
property  in  the  thing  given  to  the  donee  by  the  donor,  who  has 
power  so  to  do,  is  necessary. 

The  acceptance  of  such  gift  by  the  donee  must  be  made  in  the 
lifetime  of  the  donor. 

The  giving  and  acceptance  must  be  proved  and  evidenced 
by  such  delivery  or  conveyance  as  the  nature  of  the  gift  admits  of. 

What  is  given  by  a  person  in  wrath  or  excess  of  joy,  or  through 
inadvertence,  or  during  minority  or  madness,  or  under  the  influ- 
ence of  terror,  or  by  one  intoxicated,  or  extremely  old,  or  afflicted 
with  grief  or  excruciating  pain,  or  what  is  given  in  sport,  is  void. 

Where  anything  is  given  for  a  consideration  unperformed,  or 
to  a  bad  man  mistaken  for  a  good  one,  or  for  any  illegal  act,  the 
owner  may  take  it  back. 

The  acceptance  of  a  gift  may  be  made  publicly  or  privately, 
having  regard  to  the  nature  of  the  gift ;  but  the  acceptance  of  a 
gift,  consisting  of  immoveable  property,  must  be  invariably  made 
with  as  much  publicity  as  possible.     Acceptance  is  made  — 

(i.)  By  rendering  thanks  with  a  thank-offering  or  presents, 
alone  or  coupled  with  an  utterance  or  expression  of  appropriating 
the  gift;   or 

(ii.)  Corporeal  acceptance,  as  by  touching;  or 

(iii.)  Using  or  enjoying  the  gift;    or 

(iv.)  Exercising  rights  of  ownership  over  the  gift. 

In  this  country  gifts  invariably  clothe  themselves  with  the 
semblance  of  a  sale,  and  therefore,  where  formal  acceptance  is 
wanting,  the  owner  can  take  back  his  gift. 

Gifts,  in  the  European  sense  of  the  term,  as  far  as  regards  im- 
moveables, seem  to  be  unknown  here. 

If  the  donee  is  in  possession,  either  alone  or  jointly  with  the 
donor  before  the  gift,  the  continuance  of  his  possession  is  sufficient 
without  any  new  delivery,  provided  the  donee  expresses  his  accept- 
ance in  the  manner  set  forth  in  (i.)  above. 

1  Halm  V.  Hughes,  1  F.  L.  R.  65 ;  Bimha  v.  Mansa,  1  F.  L.  R.  137. 


362  RETARDED   PEOPLES  [Part  II. 

Every  gift  when  completed  is  irrevocable,  except  in  gifts  between 
parent  and  child,  which  can  be  recalled  or  exchanged  at  any  time  by 
the  parent  in  his  or  her  lifetime,  or  by  his  will  or  dying  declarations. 

A  gift  is  not  rendered  invalid  — 

(a)  By  being  made  in  contemplation  of  death  and  subject  to 
a  conditional  right  of  resumption  in  case  of  the  donor's  recovery ;  ^ 

(6)  By  being  made  dependent  on  a  contingency;   or 

(c)  Because  the  donee  is  a  minor  provided  some  one  on  his 
behalf  makes  the  necessary  acceptance;    or 

id)  Because  it  is  voluntary. 

Anything  given  in  return  for  a  gift,  as  a  token  of  the  acceptance, 
cannot  be  recalled  so  long  as  the  original  gift  is  in  the  possession 
of  the  original  donee. 


(b)  Mortgage  and  Pledge 

A  pledge  is  the  delivery  of  a  thing  or  chattel  to  a  creditor  as  a 
security  for  money  advanced  or  due,  on  condition  of  his  restoring 
it  to  the'owrier  after  payment  of  the  debt,  and  subject  to  a  condi- 
tional power  of  sale  if  the  loan  or  debt  be  not  paid  at  a  certain 
specified  time. 

The  creditor  is  not  bound  to  defend  the  title  of  the  owner  of 
such  security. 

A  moveable  thing  or  chattel  given  as  security  for  a  debt  is  a 
pledge. 

An  immoveable  property  given  or  conveyed  by  way  of  security 
for  a  debt  is  a  mortgage. 

The  person  giving  an  immoveable  property  as  security  is  called 
the  mortgagor;  and  the  person  to  whom  such  property  is  given 
is  called  the  mortgagee. 

When  the  mortgagor  discharges  the  Habilities  for  which  an 
immoveable  property  is  mortgaged,  he  is  said  to  redeem  the 
property. 

When  the  mortgagee  enforces  any  right  given  to  him  by  his 
contract  of  putting  an  end  to  the  mortgagor's  right  to  redeem, 
whether  by  selling  the  property,  and  out  of  the  proceeds  of  the 
sale  satisfying  the  debt  on  the  property,  or  by  transferring  the 
property  to  another  person,  or  by  becoming  absolute  owner  of 
the  mortgaged  property,  he  is  said  to  foreclose. 

Where  a  person  is  the  security  given  for  the  payment  of  any 
sum  of  money,  the  person  is  called  a  pawn,  and  the  transaction, 

1  Assandua  v.  Hayfron  and  others,  before  Macleod,  C.J.,  1887,  a  case 
of  Donatio  mortis  causa. 


Chap.  XII,  §  5.]  FANTI   CUSTOMARY   LAW  363 

pawning ;  but  since  the  Gold  Coast  Ordinance,  No.  1,  1874,  this 
has  been  declared  illegal. 

A  mortgagee  has  no  power  to  foreclose  without  first  giving  rea- 
sonable notice  to  the  mortgagor,  and  in  his  absence,  to  the  imme- 
diate relatives  of  the  mortgagor,  of  his  intention  so  to  do. 

Where  real  property  has  been  mortgaged,  the  mortgagee  is  abso- 
lutely entitled  to  enjoy,  without  any  hindrance  whatsoever,  all 
profits  accruing  therefrom,  nor  is  he  accountable  for  the  profits 
so  enjoyed.^ 

Where  continuing  interest  is  charged  for  the  principal,  the  mort- 
gagee may  reimburse  himself  for  any  trouble  or  expenses  he  may 
have  put  himself  to,  for  and  on  behalf  of  the  mortgaged  property. 

A  mortgagor  can  redeem  at  any  time  he  please,  provided  he 
repays  all  monies  due  on  the  property,  whether  such  monies  be  the 
principal  debt  or  interest,  or  expenses  incurred  on  behalf  of  the 
property. 

No  mortgagor  or  mortgagee,  or  their  respective  successors,  can 
transfer  to  another  any  rights  which  he  may  have  under  the 
mortgage  without  notice  to  the  other  party  to  the  mortgage  trans- 
action. The  mortgagor  may  assign  or  transfer  his  right  of  redemp- 
tion to  a  third  person. 

To  make  such  an  assignment  or  transfer  of  mortgage  rights 
valid,  it  is  necessary  that  some  of  the  witnesses  of  the  original 
transaction  be  present,  if  available,  or  the  mortgagor  have  notice 
of  the  person  to  whom  such  assignment  or  transfer  is  made. 

The  person  to  whom  a  chattel  is  pledged  has  the  right  to  use  it, 
nor  is  the  pledgor  discharged  if  the  thing  pledged  is  destroyed  by 
use :  e.g.  Kudwo  pledges  his  cloth  to  Kwow  for  a  dollar.  Kwow 
has  the  right  to  use  the  cloth,  and  Kudwo  is  bound  to  repay  the 
dollar  so  long  as  the  pledgee  can  restore  the  cloth,  even  if  in  a  torn 
and  w^orn-out  condition. 

No  person  can  sell  a  chattel  pledged  to  him  until  the  owner 
on  being  requested  to  redeem  has  failed  so  to  do.  Where  the 
owner  is  dead  or  not  to  be  found,  his  immediate  successors  or  rela- 
tives must  have  notice  of  the  intended  sale  of  such  pledged  article 
before  the  pledgee  can  safely  sell. 

The  pledgee  cannot  purchase  from  himself  any  article  pledged 
to  him  unless  the  owner  thereof,  or  some  one  claiming  through  him, 
had  gone  into  accounts  with  the  pledgee  and  consented  to  his 
taking  the  chattel,  in  full  or  part  satisfaction  of  the  debt. 

1  Amonoo  v.  Abhakuma,  1  F.  L.  R.  157;  Ashong  v.  Barng,  1  F.  L.  R. 
153. 


364  RETARDED  PEOPLES  [Part  II. 

Where  a  mortgagee  or  pledgee  realizes  his  security  and  finds 
there  is  still  a  balance  due,  he  cannot  call  on  the  mortgagor  or 
pledgor  to  make  up  the  difference.  If  his  security  has  turned  out 
insufficient,  he  has  to  thank  himself  for  his  simplicity.  The  debtor, 
however,  is  bound  to  make  good  the  balance,  if  the  creditor  sold 
it  by  his  instructions  or  with  his  approval.  If,  on  the  other  hand, 
the  security  realizes  more  than  the  debt,  the  surplus  must  be  paid 
over  to  the  debtor  or  his  personal  representative.  Once  a  pledge 
or  mortgage,  always  a  pledge  or  mortgage.^ 

(c)  Loans/ 

A  loan  is  the  lending  of  an  article  to  another  person  called  the 
(borrower,  for  the  use  of  such  borrower,  either  gratuitously  or  for 
valuable  consideration. 

The  property  in  an  article  borrowed  remains  in  the  owner, 
whether  the  borrower  himself  have  it  in  his  possession  or  not. 
.  The  borrower  is  bound  to  exercise  the  greatest  diligence  and 
care  for  the  safety  of  the  article  borrowed,  for  if  the  thing  bor- 
rowed is  injured  through  his  carelessness,  he  is  bound  to  make  an 
equivalent  restoration. 

If  the  thing  borrowed  be  injured  or  lost  by  act  of  God,  he  is 
not  liable  if  his  own  negligence  did  not  conduce  to  such  loss  or 
injury.  If  the  thing  be  lost  by  any  other  cause  whatsoever,  the 
owner  at  his  own  option  can  claim  the  value  or  an  article  of  like 
nature  and  quality. 

Where  the  borrower  fraudulently  deals  with  property  borrowed, 
or  uses  it  for  a  purpose  different  from  that  for  which  he  told  the 
owner  of  the  thing,  he  is  liable,  not  only  to  return  it,  but  also  to 
^  account  for  any  profits  accruing  therefrom. 

E.g. :  A  lends  his  cutlass  for  a  month  to  B,  who  said  he  wanted 
to  cut  some  bamboo  trees.  B  does  not  use  it  to  cut  bamboo  trees, 
but  to  cut  down  odum  wood.  A  can  claim  his  cutlass  back  before 
the  end  of  the  month,  and  compel  B  to  give  compensation  from 
the  proceeds  of  the  odum  wood. 

If  B  had  not  shown  for  what  purpose  he  required  the  cutlass, 
A  could  not  demand  any  compensation. 

The  most  common  kind  of  loan  is  that  for  money.     Here  the 

lender  invariably  asks  for  a  surety  or  security,  and  in  the  absence 

of  a  special  and  distinct  contract,  the  rate  of  interest  is  fifty  per 

cent,  on  the  sum  advanced,  the  principal  and  interest  being  pay- 

1  Incroma  v.  Marmoon,  1  F.  L.  R.  157. 


Chap.  XII,  §  5.]        FANTI  CUSTOMARY  LAW  365 

able  at  an  indefinite  time  not  less  than  a  year,  and  even  then  after 
notice.  The  said  interest  of  fifty  per  cent,  is  added  once  for  all ; 
other  lower  rates  are  fixed,  according  to  an  agreement  of  the 
parties.  Among  the  Wassaw  people,  for  each  extension  of  time 
not  less  than  a  month  extra  interest  is  charged. 

(d)  Sale    ^— 

Dealing  with  the  native  law  and  custom  relating  to  the  sale  of 
land,  where  the  English  language  or  a  written  instrument  is  not 
used,  the  careful  student  will  doubtless  not  fail  to  observe  that,  of 
all  things,  land  is  about  the  last  thing  which  became  the  sub- 
ject of  an  out-and-out  sale.  Owners  of  land  were  as  reluctant  and 
unwilling  to  part  with  their  land  and  inheritance  as  was  Ephron, 
the  Hittite,  to  sell  a  burying-place  to  Abraham,  as  recorded  in 
the  Holy  Writ.     Rather  than  sell  his  land,  the  Fanti  landowner 

prefers  to  grant  lea ve^o~  another,  a  Triend  or  alien,  to  cultivate  or        1 

dwell  upon  It  foFan  indefinite  period  of  time,  thus  reserving  unto 
himself  the  reversion  and  the  right  to  resume  possession  whenever 
he  please. 

This  is  the  reason  why  the  first  European  settlers  could  not 
buy  the  freehold  of  the  site  of  their  forts  and  castles,  but  had  to 
give  pay-notes,  securing  to  the  owners  of  the  land  certain  annual 
rents. 

Before  the  prohibition  of  slavery  and  pawning  on  the  Gold 
Coast,  rather  than  part  with  the  family  inheritance,  members  of 
a  family  have  cheerfully  volunteered  to  be  sold  to  raise  money  for 
the  payment  of  a  pressing  family  liability.  But  in  process  of 
time,  and  especially  since  the  emancipation  of  slaves  and  the  pro- 
hibition of  slavery,  the  sale  of  lands  has  been  of  more  frequent 
occurrence  in  the  coast  towns. 

The  inhabitants  of  the  more  inland  districts  are  very  conserv- 
ative, but  the  native  laws  and  custom  relating  to  the  sale  of  land 
have  not  changed  at  all,  and  the  decisions  of  the  Judicial  Asses- 
sors thereon  are  as  applicable  to-day  as  then. 

:|c  :):  :):  9|«  *  *  *i: 

It  has  been  already  stated  that  in  ancient  days  the  sale  of  land 
was  not  of  general  or  common  occurrence,  and  to-day  there  are 
some  parts  of  the  Gold  Coast  whose  inhabitants  will  not  sell  any 
of  their  lands. 

But  the  sale  of  the  produce  on  one^s  land  is  a  very  ancient 
custom.     In  the  palm-oil  producing  districts  there  exists  the  cus- 


366  RETARDED   PEOPLES  [Part  I{. 

torn  of  selling  the  palm  crops  of  a  specified  field,  for  one  or  more 
seasons,  and  the  purchaser  is  entitled  to  enter  on  the  land  with  his 
servants  to  gather  the  nuts  and  make  the  oil  on  such  land.  While 
engaged  in  this  work  they  may  eat  some  of  the  plantains  there 
growing,  but  must  not  remove  any  for  sale. 

On  the  same  principle  landowners  sell  growing  timber  for  a  lump 
sum  of  money,  which  the  purchaser  has  the  right  to  cut  down  on 
and  remove  wdthin  a  reasonable  time,  from  a  piece  of  land,  the 
name  of  which  is  given,  or  the  boundaries  thereof  are  mentioned 
or  shown.  When  the  trees  are  cut  down  the  land  reverts  to  the 
owner,  although  the  felled  timber  can  be  removed  afterwards. 
Unfortunately,  it  has  been  found  in  several  instances,  that  land- 
owners have  been  made  to  put  their  names  and  seals  to  documents 
in  the  English  form,  under  the  belief  they  w^ere  selling  only  the 
timber  on  such  land,  when,  as  a  matter  of  fact,  they  were  parting 
with  the  entire  ownership  of  such  lands.  It  is  satisfactory  to  state, 
that  many  conveyances  of  this  kind,  having  been  detected  by  the 
Concessions  Divisional  Court  at  Axim,  were  abandoned  by  the 
claimants  thereof. 

The  right  to  collect  or  manufacture  rubber  on  payment  of  a 
lump  sum  is  more  in  the  nature  of  a  licence  for  valuable  considera- 
tion than  of  sale  of  the  rubber. 

Generally  when  any  land  is  sold,  and  the  ownership  is  parted 
with,  the  purchaser  becomes  the  owner  of  everything,  including 
the  minerals  in  such  land,  for  the  common  saying  is,  "  If  you  find 
a  treasure-trove  on  your  land,  you  are  entitled  to  it;  it  is  your 
luck."  But  in  such  mining  districts  as  Wassaw,  Sefwhi,  Apol- 
lonia,  and  Aowin,  the  purchase  of  lands  does  not  include  the  min- 
erals. The  ownership  of  the  minerals  is  vested  in  the  king's  stool. 
When  the  purchaser  mines,  he  is  bound  to  give  to  the  stoolholder 
the  usual  Ebusa ;  if,  however,  he  allows  others  to  mine,  he  is  en- 
titled to  claim  from  them  one-third  as  his  Ebusa,  and  of  this  the 
stool-holder  gets  a  third. 

When  the  owners  of  the  land  consent  to  sell,  a  day  is  fixed 
for  inspecting  the  land.  The  owners  of  land  adjacent  to  and  abut- 
ting upon  land  under  inspection  are  invited  to  be  present,  so  that 
disputes  as  to  boundary  marks  may  be  averted  in  the  future. 
Where  the  land  is  a  town  plot,  and  the  intending  purchaser  knows 
it,  an  inspection  may  be  waived. 

In  the  contract  of  sale,  whether  of  immoveable  or  moveable 
property,  one  is  ever  reminded  of  the  saying,  Ohi  nto  nantwi  ana- 
moriy  "Nobody  buys  the  footprints  of  a  bullock." 


Chap.  XII,  §  5.]  FANTI   CUSTOMARY   LAW  367 

Having  determined  upon  the  identity  of  what  is  to  be  sold, 
and  the  interest  which  the  buyer  is  acquiring,  the  price  is  fixed, 
and  is  payable  in  gold  or  silver.  In  former  days  purchases  were 
made  by  barter.  The  Fanti  word  for  trading  is  Batta.  This 
word  is  used  by  Asanti  and  other  traders,  and  is  not  a  corruption 
of  the  word  "barter."  ^ 

Then  is  paid  the  earnest-money  (Trama).  This  binds  the 
contract,  for  without  the  payment  of  Trama  to  the  vendor  no 
contract  exists,  and  he  is  at  liberty  to  sell  the  land  to  some  one 
else  for  a  larger  price ;  the  intending  purchaser  can  withdraw  his 
offer  and  repudiate  the  contract  without  being  liable  to  any  dam- 
ages, although  the  Trama  becomes  forfeited;  but  if  any  part 
payment  has  been  made,  it  is  doubtful  whether  it  can  be  recovered. 
In  this  connection  is  the  expression,  "  If  you  have  not  eaten  any- 
thing you  do  not  pay  for  it."  Basel  Mission  Factory  v.  Bruce, 
2  F.  L.  R.  99,  will  repay  a  careful  study,  and  will  be  found  very 
interesting,  instructive,  and  useful.  In  that  case  the  defendant 
purchased  a  piece  or  parcel  of  land  from  one  Jacob  Vanderpuye 
on  April  23,  1899,  for  one  hundred  and  seventy-five  pounds,  of 
which  he  paid  eighty  pounds  down ;  the  balance,  ninety-five  pounds, 
was  to  be  paid  three  months  afterwards.  The  purchaser  did  not 
receive  a  deed  or  any  document,  but  at  the  trial  he  called  evidence 
to  show,  and  the  Court  found,  that  the  sale  was  a  valid  one  by 
native  law.  The  plaintiffs  alleged  they  had  bought  from  the  same 
Jacob  Vanderpuye  a  larger  piece  of  land,  of  which  this  formed  a 
portion,  for  three  hundred  and  eighty  pounds,  and  had  received 
a  deed  of  conveyance  for  the  same  on  June  19,  1899,  which  had 
been  duly  registered  as  required  by  sect.  17  of  the  Registration 
Ordinance,  1895 ;  and,  further,  as  they  were  not  natives,  the  cus- 
tomary law  relating  to  sales  should  be  disregarded.  The  Court 
decided  that  the  land  in  question  had  been  validly  sold  to  the 
defendant  prior  to  its  sale  to  the  plaintiffs,  and  gave  judgment  in 
favour  of  the  defendant,  and  this  was,  on  appeal,  confirmed. 

The  Trama  is  sometimes  distributed  among  the  witnesses  to  the 
contract,  as  token  of  their  presence  when  the  bargain  was  struck ; 
but  it  is  more  usual  for  the  vendor  on  receiving  the  Trama  to  give 
to  the  witnesses  a  distinct  amount  of  money.^ 

The  drinking  of  palm-wine,  rum,  gin,  or  other  spirits  is  not  an 
essential  part  of  the  contract  of  sale. 


1  Cobhold  V.  Taweia,  1  F.  L.  R.  179. 

2  Quay  V.  Aywoodsuah,  1  F.  L.  R.  163, 


368  RETARDED   PEOPLES  [Part  II. 

In  the  absence  of  agreement  reserving  the  crops  on  the  land 
which  are  to  be  removed  as  soon  as  possible,  or  within  a  specified 
time  by  the  owner,  the  purchaser  of  a  piece  of  land  is  entitled  to 
all  that  is  thereon  and  within  it. 

He  who  offers  anything  for  sale  thereby  implies  he  has  a  right 
or  is  authorized  by  the  true  owner  or  owners  to  sell  and  part  with 
the  ownership  therein,  and  to  give  a  good  title  to  the  purchaser. 
Where  the  title  is  found  defective,  the  purchaser  can  demand  his 
money  back,  and  all  expenses  incurred  must  be  repaid  by  the 
seller,  whose  personal  representatives  are  not  liable.  If,  there- 
fore, a  man  buys  from  another,  and  after  the  death  of  the  seller 
the  purchaser  discovers  his  title  defective,  he  has  no  remedy,  for 
if  he  wished  to  protect  himself,  he  should  have  specially  contracted 
with  the  seller  for  good  title  and  included  his  successors  or  heirs. 
No  earnest-money  (Trama)  is  paid  in  simple  purchases  or  in 
barter.  In  the  sale  of  lands  and  slaves,  and  for  a  large  quantity 
of  goods  at  one  sale  or  transaction,  Trama  must  be  paid. 

In  contracts  for  the  sale  of  chattels  and  merchandise,  as  soon  as 
Trama  is  paid,  the  purchaser  is  entitled  to  their  possession  on  pay- 
ment of  the  agreed  price.  If  he  fail  to  complete  the  purchase,  he 
forfeits  the  Trama,  but  he  does  not  seem  to  be  liable  to  any  dam- 
ages for  breach  of  contract.  The  vendor  cannot  compel  the  pur- 
chaser to  perform  his  part  of  the  contract ;  on  the  other  hand,  in 
the  absence  of  the  Trama,  the  purchaser  cannot,  by  tendering  the 
price  agreed  upon,  compel  the  vendor  to  give  him  delivery.  The 
respective  positions  of  the  parties,  and  their  freedom  from  lia- 
bility, are  tersely  stated  in  the  well-known  trade  expression,  cur- 
rent on  the  West  Coast  of  Africa,  "  No  buy,  no  pay." 

(e)  Testamentary  Dispositions 

The  Customary  Law  knows  nothing  of  wills  in  writing,  and 
even  in  the  matter  of  testamentary  dispositions  the  members  of 
the  family  exercise  much  influence. 

Cruickshank  describes  the  ceremony  of  will-making,  as  he  calls 
it,  which  is  still  common  among  the  people.  "  In  view  of  death, 
the  head  of  the  family  summons  around  his  death-bed  his  rela- 
tions. He  instructs  them  about  the  state  of  his  affairs,  and  how 
his  property  was  acquired,  and  how  to  be  disposed  of.  He  is 
most  particular  to  furnish  them  with  proofs  respecting  the  acqui- 
sition of  his  pawns  and  slaves,  mentions  the  names  of  the  witnesses 
to  the  transactions,  the  circumstances  under  which  they  took  place, 
and  the  sums  paid  for  them,  in  order  that  his  successor  may  be 


Chap.  XII,  §5.]  FANTI   CUSTOMARY   LAW  369 

enabled  to  defend  his  rights,  in  the  event  of  their  attempting  to 
obtain  their  liberty  or  redemption  at  the  death  of  their  master. 
He  also  recounts  the  names  of  his  debtors  with  the  sums  which 
they  owe  to  him,  as  well  as  the  debts  which  he  owes  to  others. 
His  death-bed  declarations,  made  in  the  presence  of  responsible 
witnesses,  are  always  received  as  evidence  in  the  event  of  litiga- 
tion afterwards."  The  curious  inquirer  may  here  be  informed 
how  suggestive  are  the  death-bed  scenes  of  the  patriarch  Jacob, 
as  recorded  in  the  sacred  writ  (Gen.  xlix.),  and  that  of  King  David. 

Now,  it  has  been  affirmed  as  a  general  proposition  by  Sir  Henry 
.JViaifte,  in  his  "  Ancient  Law,"  that  in  all  indigenous  societies  a 
condition  of  jurisprudence,  in  which  testamentary  privileges  are 
not  allowed,  or  rather  not  contemplated,  has  preceded  the  latter 
stage  of  legal  development  in  which  the  mere  will  of  the  proprietor 
is  permitted,  with  more  or  less  restrictions,  to  override  the  claims 
of  his  kindred  in  blood.  And  even  among  the  Romans,  a  will 
was  never  regarded  by  them  as  a  means  of  disinheriting  a  family 
or  of  effecting  the  unequal  distribution  of  a  patrimony,  and  the 
rules  of  Law  preventing  its  being  turned  to  such  a  purpose  increase 
in  number  and  stringency  as  the  jurisprudence  unfolds  itself. 
Samansiiv  is,  in  fact,  not  a  word  that  accurately  conveys  the 
conception  of  a  will  as  understood  by  an  English  lawyer,  for  the 
idea  of  making  a  disposition  of  property  to  take  effect  after  the 
death  of  the  giver,  as  has  been  noticed  by  observant  European 
travellers  on  the  Gold  Coast,  is  really  opposed  to  the  fundamental 
principles  of  the  ties  binding  the  members  of  the  family. 

Without  doubt,  the  custom  of  making  wills  with  respect  to  self- 
acquired  property  is  of  modern  growth,  but  no  one  can  tell  when 
the  practice  first  began.  Death-bed  dispositions,  known  as 
Samansiiv,  seem  to  be  recognized,  not  so  much  because  of  any 
assumed  right  to  make  such  a  disposition,  as  because,  from  feelings 
of  affection,  respect,  or  even  superstition,  the  last  wishes  of  the 
deceased  are  considered  to  be  entitled  to  weight,  among  the 
members  of  his  family.  And  this  idea  runs  through  the  Custom- 
ary Law  relating  to  testamentary  disposition  of  property.  In 
fact,  the  only  disposition  of  property  known  to  the  early  Custom- 
ary Law  was  a  transfer  followed  by  immediate  possession.  Con- 
tact with  Bri^sh  rule  in  the  old  settlements  gave  rise  to  the  prac- 
tice of  reducing  into  writing  such  transactions,  and  writing  has 
in  some  localities  become  common,  not  so  much  because  it  is  essen- 
tial for  the  validity  of  transfer,  but  because  it  is  a  permanent 
record  of  such  occurrence. 


37.0  RETARDED   PEOPLES  [Part  II. 

A  stool-holder,  or  chief,  or  head  of  a  family,  or  the  manager  of 
family  property,  has  no  power  by  testamentary  disposition  to 
alienate  any  part  or  portion  of  the  family  estate,  moveable  or 
immoveable,  from  the  family.  He  may  suggest  some  one  to  be 
his  successor,  but  on  his  decease  the  people  of  the  stool  or  members 
of  the  family  may  or  may  not  act  upon  his  suggestion  or  recom- 
mendation (Coffie  Yammoah  v.  Ahhan  Cooma). 

The  owner  of  self-acquired  property  can  in  his  life  time  deal 
with  it  as  he  pleases,  and  where  he  intends  to  give  the  whole  or  a 
portion  of  it  to  his  child  by  a  freeborn  wife,  Adihiwa,  or  to  any 
person  not  a  member  of  his  family,  he  does  so  before  his  death. 
As  soon  as  he  dies,  his  successor  is  entitled  to  all  the  property  he 
died  possessed  as  heritable  and  ancestral  estate,  subject  to  the 
usual  rules  of  inheritance ;  of  course  the  successor  may  give,  heed 
to  the  expressed  desires  of  the  deceased,  who  may  have  been  taken 
ill  so  suddenly  as  to  have  been  unable  to  accomplish  his  inten- 
tion respecting  the  disposal  of  his  property. 

Where  the  owner  of  self-acquired  property  gives  testamentary 
directions  as  to  its  disposal  among  the  members  of  his  family, 
who  thereby  take  such  property  as  heritable  or  ancestral  property, 
the  person,  who  would  otherwise  have  succeeded  to  the  deceased, 
cannot  ignore  such  dispositions,  and  the  persons  benefited  have 
a  right  to  enforce  such  bequest. 

E.g.  Kwesi,  owner  of  Addum  and  Donpim  lands,  four  bendas, 
a  house,  and  twelve  pieces  of  salagha  cloth,  makes  testamentary 
disposition,  bequeathing  Addum  land  to  his  son  Kudwo,  Donpim 
land  to  his  youngest  niece  Araba,  two  bendas  to  Aduku,  his  younger 
brother,  two  pieces  salagha  cloth  to  Baidu,  his  friend.  The  said 
Kwesi  had  a  mother,  elder  brother,  and  three  sisters  him  surviving. 
By  the  Customary  Law,  his  son  Kudwo  cannot  take  Addum  land 
unless  his  father  placed  him  in  possession  before  his  death ;  Araba 
is  entitled  to  Donpim  land,  and  can  enforce  her  right  to  possess 
the  land,  she  being  of  the  heritable  blood ;  and  it  is  only  on  the 
failure  of  her  issue  to  succeed  that  the  other  members  of  her 
family  come  in.  Aduku  also  is  entitled  to  take  the  two  bendas, 
but  Baidu  cannot  compel  delivery  of  the  two  pieces  of  salagha 
cloth,  if  the  mother,  eldest  brother,  or  the  sisters  refuse  to  deliver 
them  to  him.  The  owner  of  self-acquired  property,  after  solemnly 
making  his  testamentary  dispositions,  may  subsequently  revoke 
a  part  or  the  whole  of  them. 

Where  a  woman,  having  issue  or  descendants,  possesses  self- 
acquired  property,  her  testamentary  declarations  as  to  the  disposal 


Chap.  XII,  §  5.]  FANTI   CUSTOMARY   LAW  371 

of  her  property  among  her  children  and  grandchildren  are  bind- 
ing. When  she  fails  to  make  such  disposition  her  mother  is  her 
successor,  then  her  children  by  seniority,  failing  whom,  her 
sisters  and  brothers  by  seniority.  So  long  as  her  children  and 
their  issue  are  alive,  the  right  of  the  brothers,  sisters,  and  sisters* 
issue  is  subordinate  to  that  of  her  own  children. 

The  property  of  her  son,  which  a  mother  succeeds  to,  is  at  her 
absolute  disposal,  and  she  can  do  whatever  she  pleases  with  it ; 
but  she  has  only  a  limited  or  at  the  most  a  life  interest  in  property 
which  comes  to  her  from  her  deceased  daughter  leaving  issue. 

E.g.  Amba  has  two  daughters,  Effua  and  Abba,  both  having 
issue,  and  sons  Kwesi,  Kobina,  and  Kwow.  Effua,  the  posses- 
sor of  four  bendas,  and  Abba,  the  owner  of  a  piece  of  land  and  some 
valuable  beads,  and  Kobina,  possessing  a  house,  chattels,  and 
some  money,  die,  each  leaving  children,  but  without  making  any 
testamentary  disposition :  the  mother  takes  the  property  of  her 
son  Kobina,  and  of  this  she  has  absolute  control.  She  may 
appoint  the  youngest  son  Kwow  to  be  Kobina's  successor,  or  even 
give  the  estate  of  the  deceased  son  to  any  of  her  grandchildren  by 
her  daughters  Effua  and  Abba,  and  such  person  will  hold  the 
property  as  heritable  or  ancestral  property.  The  said  mother  has 
only  a  limited  interest,  however,  in  the  estate  of  her  daughters, 
for  the  right  of  children  to  succeed  to  their  mother  is  superior  to 
that  of  their  grandmother. 

A  stool-holder,  who  had  kept  his  self-acquired  property  distinct 
from  the  stool  property,  to  the  knowledge  of  the  senior  and  imme- 
diate members  of  the  stool,  can  make  a  valid  testamentary  dispo- 
sition of  such  self-acquired  property  to  a  member  of  the  family. 
The  Customary  Law  does  not  permit  any  person  to  bequeath  to 
an  outsider  a  greater  portion  of  his  property  than  is  left  for  his 
family.  Nor  does  the  Customary  Law  permit  any  testamentary 
disposition,  by  a  man  weak  in  intellect,  or  imbecile,  or  insane,  or 
under  the  influence  of  fraud  or  misrepresentation,  to  stand,  or  to 
be  regarded  at  all. 

It  is  not  only  on  the  death-bed  that  a  man  can  make  testamen- 
tary disposition.  A  person  can  make  his  testamentary  disposition 
while  enjoying  perfect  health;  but  at  the  time  it  is  made,  the 
witnesses  must  be  distinctly  told  by  him  his  words  are  his  Sam- 
ansiw,  to  take  effect  after  his  death.  A  subsequent  Samansiio 
does  not  necessarily  cancel  or  revoke  a  previous  one,  unless  it  is 
incompatible  therewith. 

Where  a  person,  by  testamentary  declaration,  releases  his  debtor 


<. 


372  RETARDED  PEOPLES  [Part  II. 

from  payment  of  any  claim  he  may  have  against  him,  or  directs 
that  a  person  in  possession  of  the  testator's  chattel  shall  retain  it 
as  his  own,  it  is  binding  on  his  successor  and  other  members  of 
the  family,  who  cannot  claim  from  such  debtor  the  amount  of  the 
debt,  or  from  such  legatee  his  legacy ;  for,  says  the  Customary  Law, 
what  is  given  under  such  solemn  conditions  cannot  be  recalled; 
the  acts  of  gratitude  should  be  cherished,  and  an  act  of  restitu- 
tion that  calms  a  guilty  conscience  pricked  with  remorse  should 
be  respected. 


VI.  SUCCESSION 

The  first  important  rule  which  one  has  to  learn  and  ever  bear 
in  mind  when  dealing  with  matters  of  succession  is  that  the  right 
of  inheritance  is  only  through  the  female,  and  pedigree  is  traced 
through  the  female  line  and  that  only.^ 

There  is  no  such  thing  as  succession,  in  the  proper  English  mean- 
ing, in  a  family  owning  ancestral  property.  The  whole  family, 
consisting  of  males  and  females,  constitutes  a  sort  of  corporation ; 
some  of  the  members  being  coparceners,  i.e.  persons  entitled  to  a 
portion  of  the  property  on  partition  (cutting  Ekar),  and  others 
who  are  dependents,  and  are  entitled  to  reside  in  the  dwelling-house 
for  life,  such  as  sons  and  daughters,  subject  to  good  conduct  and 
not  disputing  right  of  the  family.  Partition  being  extremely 
rare,  the  idea  of  heirship  scarcely  presents  itself  to  the  mind  of 
any  member  of  the  family.  The  members  are  entitled  to  reside 
in  the  ancestral  house,  and  to  enjoy  that  amount  of  affluence 
and  consideration  which  springs  from  their  belonging  to  a  family 
possessed  of  greater  or  less  wealth. 

The  head  of  a  family  holds  his  property  either  in  severalty  or 
in  coparcenary,  and  this  depends  whether  the  property  is  self- 
acquired,  family  property,  or  ancestral  property,  and,  if  the  last, 
whether  it  be  attached  to  some  political  or  public  office. 

The  right  of  inheritance  to  ancestral  property  attached  to  a 
public  or  political  office,  varies  as  to  whether  such  property  is 
enjoyed  with  or  without  the  immediate  or  remote  control  of  any 
person.  For  example,  in  the  case  of  a  captaincy  (Tufuhin)  or 
other  commanding  position  in  a  fighting  force,  without  election 
no- one  can  fill  the  post  left  vacant  by  his  father  or  uncle  or  brother. 

1  Ahhacan  v.  Buhuivooni,  1  F.  L.  R.  213;  Parker  v.  Mensah,  1  F.  L.  R. 
204;   Holdbrook  v.  Atta,  1  F.  L.  R.  211. 


Chap.  XII,  §6.]  FANTI   CUSTOMARY   LAW  373 

Where  the  property  is  under  or  subject  to  another  stool  or  head 
of  a  family,  either  by  commendation  or  subjection,  or  by  any 
other  means,  the  superior  lord  or  head  of  the  family  has  an  ulti- 
mate and  absolute  right  of  veto,  whenever  the  person  selected  or 
elected  by  the  retinue  or  members  of  the  family  is  considered  unfit 
or  unsuitable  by  him. 

E.g.  Kudwo,  brother  or  nephew  of  X  deceased,  is  chosen  by  his 
family  to  sit'  on  the  stool  under  Y,  whose  chief  he  was.  If  the 
blood  relatives  and  domestics  and  bondmen  of  the  family  concur, 
the  proposal  must  be  confirmed  by  king  Y,  before  Kudwo  can  be 
placed  in  the  room  of  X  deceased.  And  on  the  failure  of  the 
blood  relatives,  domestics,  and  bondmen  to  present  a  suitable 
person,  the  king  may  himself  choose  one  of  the  blood  relatives; 
and  this  person  will  succeed  if  accepted  by  the  major  part  of  the 
family  or  people  of  the  subordinate  stool,  otherwise  one  of  the 
domestics  or  bondmen  is  to  be  appointed  as  the  manager  or  trus- 
tee for  life  or  for  a  specified  period  of  the  family  possessions.^ 

The  owner  of  self-acquired  real  property  dying  intestate,  is 
not  succeeded  by  his  sons,  they  being  outside  the  line  of  inheri- 
tance, but  by  his  mother  and  her  issue  according  to  seniority. 

Persons  in  the  line  of  succession  are :  — 

Mother. 

Brothers,  according  to  seniority. 

Nephews,  by  seniority. 

Sisters. 

Sisters'  daughters. 

Failing  these  — 

Mother's  brothers,  by  seniority  or  election. 

Mother's  sisters. 

Mother's  sisters'  children. 

Failing  these  and  their  stock,  the  domestics  in  whose  veins  runs 
any  of  the  heritable  blood,  take  by  seniority.  Next,  the  head 
domestic;  lastly,  a  member  of  the  tribe.  Provided  always  that 
a  man  is  invariably  preferred  to  a  woman.  Hence  the  saying, 
"  Obaa  odan  bayin  "  (a  man  is  the  mainstay  of  a  woman). 

There  are  therefore  four  kinds  of  successors,  viz.  Real,  Proper, 
Ordinary,  and  Extraordinary. 

The  Real  successor  of  a  person  is  his  mother. 

We  call  those  persons  Proper  successors  who  are  the  uterine 
brothers  and  sisters  of  the  deceased,  and  the  issue  of  such  sisters ; 
but  never  can  the  pedigree  be  traced  out  in  the  line  of  the  male. 
1  Amfoo  V.  Yardonuaj  1  F.  L.  R.  198. 


374 


RETARDED    PEOPLES 


[Part  II. 


Ordinary  successors  are  such  persons  as  are  descended  from  the 
maternal  grandmother : 

E.g. :  A  person's  uncle  or  aunts,  and  the  issue  of  such  aunts. 

Extraordinary  successors  are  :  — 

(i.)  Issue  by  a  house  domestic  with  a  male  person  of  the  herit- 
able blood  (Dihi). 

(ii.)  Domestic. 

(iii.)  Clan  or  tribal  relative. 

The  rule  of  succession  may  be  made  plain  perhaps  by  the  fol- 
lowing pedigree  or  table  of  descent :  — 


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Chap.  XII,  §  6.]  FANTI   CUSTOMARY   LAW  375 

In  the  above  pedigree  A,  a  male,  is  the  owner  of  self-acquired 
property.  On  his  death,  his  wife  Abba  does  not  succeed  to  his 
property,  but  his  Real  successor  is  his  mother  B ;  she  waiving  her 
right,  his  brothers  C,  D,  and  E  take  by  seniority.  Failing  the 
brothers  C,  D,  and  E,  his  successor  is  found  among  his  nephews, 
that  is,  children  of  his  sisters  F,  G,  and  H. 

The  nephews  are  I,  son  of  his  sister  F ;  and  J,  son  of  his  sister  G. 
These  take  by  seniority ;  if,  therefore,  J,  the  nephew  by  his  younger 
sister  G,  is  older  than  I,  J  has  a  better  right  to  the  succession. 

If  the  nephew  I  or  J  be  older  than  the  brothers  C,  D,  E,  such 
nephew  can  be  preferred  over  the  brothers  C,  D,  E,  and  the 
sisters  F,  G,  H,  to  succeed  A,  and  although  the  brothers  are  ca- 
pable to  succeed,  yet  any  of  them  can  waive  his  right  in  favour  of 
one  of  the  nephews.  On  the  death,  however,  of  the  nephew,  the 
right  of  the  brother  passed  over  or  who  waived  his  right  revives. 
Failing  the  brothers  and  nephews,  the  next  persons  in  the  succes- 
sion are  K  and  L ;  next  to  them  are  M,  N,  and  O,  then  P,  Q,  and 
R.  The  persons  so  named  are  those  who  can  be  placed  on  the 
stool,  if  any,  and  can  become  head  of  the  family.  If  any  of  them 
cannot  succeed  when  it  is  his  turn,  and  there  is  no  proper  person 
available,  then  S,  a  son  of  E,  by  a  domestic  of  the  house,  or  a  suit- 
able domestic  is  appointed  manager  of  the  property.  It  seems  that 
where  a  house-born  son  as  S  is  appointed  guardian  trustee,  or 
manager,  he  holds  his  post  for  life,  although  he  can  resign  in  favour 
of  any  of  the  proper  successors  becoming  fit  to  inherit. 

The  sisters  F,  G,  and  H  are  the  natural  and  proper  guardians 
of  the  property  during  the  incapacity  or  minority  of  the  proper 
successors,  but  their  management  of  such  property  and  their 
control  goes  by  seniority,  the  eldest,  F,  taking  before  G  and  H. 
Where  the  nephews  are  capable  to  look  after  the  property,  they 
take  by  turns :  e.g.  if  the  three  sisters  had  three  sons  each,  after 
the  death  or  deposition  for  misconduct  of  the  eldest  son  of  the  eldest 
sister,  one  of  the  sons  of  the  second  sister  will  be  entitled  to  suc- 
ceed to  the  uncle's  property,  and  on  his  death  the  eldest  son  of  the 
youngest  sister  will  be  next  entitled,  and  one  branch  will  not  be 
exhausted  before  those  of  the  other  branch  come  in. 

Suppose  K,  a  sun  of  U,  the  daughter  of  F,  who  is  the  sister  of 
A,  had  died,  leaving  ^elf-acquired  property.  After  his  mother  he 
<iwill  be  succeeded  by  Lr,  then  by  M,  his  nephew,  who  will  be  in  his 
turn  succeeded  by  Z,  his  grandnephew,  and  not  by  O,  the  great 
grandson  of  H,  who  cannot  succeed  until  the  issue  of  Z's  sister,  V, 
becomes  extinct.     When  that  line  becomes  extinct,  some  say  any 


376  RETARDED   PEOPLES  [Part  II. 

son  of  Z  by  a  domestic  takes  in  preference  to  O,  who  is  blood 
relative,  and  the  ordinary  successors  of  K,  both  persons  tracing 
descent  from  a  common  ancestress  B,  and  failing  the  descendants 
of  B,  the  persons  entitled  must  be  found  by  finding  the  descendants 
of  A's  aunts. 

When  a  person  such  as  A  dies,  having  his  own  acquired  property, 
moveable  and  immoveable,  he  is  not  succeeded  by  his  sons,  free- 
born  or  domestic,  whose  only  right  is  that  of  a  life  interest  in  the 
dwelling-house  built  by  their  father,  the  deceased,  on  a  land,  not 
family  property.  For  if  the  house  be  built  on  family  land,  the 
children  have  only  right  of  occupation  during  good  conduct.  If 
any  one  living  in  the  house  of  his  father  deny  the  right  of  the  proper 
successor,  or  commit  waste  or  injure  the  house,  or  encumber  or 
sell  it,  he  thereby  forfeits  his  life  interest.  Such  person  must 
make  the  necessary  repairs,  and  may  quit  if  the  successor  requires 
it  for  himself  as  a  residence. 

Mr.  Eminsang,  giving  his  opinion  on  Boham  and  another  v. 
Marshall  (May  18,  1892),  says:  "By  native  law,  Anna  Boham 
had  a  right  to  the  house,  as  she  was  the  sister  of  John  Boham.  By 
native  law,  she  was  the  only  heiress  at  the  time.  She  could  by 
native  law  have  power  to  give  the  house  to  the  children  for  their 
natural  lives.  Of  the  part  so  given  to  the  children,  unless  Marshall 
gave  the  children  an  equivalent,  he  could  not  turn  them  out  of 
the  house.  Marshall  can  pull  down  his  portion  of  the  house,  if 
he  did  not  interfere  with  the  other  portion. 

"  By  the  Court :  By  native  law,  the  person  succeeding  to  prop- 
erty could  not  dispose  of  it  to  beyond  his  lifetime,  unless  with  the 
consent  of  the  families.  In  this  case,  the  plaintiffs  being  the  chil- 
dren of  John  Boham,  have  the  right  to  remain  in  their  father's 
house  during  their  lives,  unless  for  good  reasons.  If  the  children 
do  not  live  in  their  father's  house,  still  if  they  can  go  and  live  there 
as  they  will,  the  heir  could  not  break  the  house  down  and  dispose 
of  the  materials.  The  heir  is  the  one  to  repair  the  house,  and  if 
the  children  are  in  a  position  they  contribute  towards  the  expenses." 

The  latter  part  of  this  opinion  is,  we  submit,  erroneous.  Chil- 
dren who  leave  their  father's  house  for  their  own  family  or  private 
house,  cannot  stop  the  father's  successor  breaking  down  the  house, 
and  if  they  alone  reside  therein,  they  must  keep  the  house  in  repair. 
Where,  however,  the  successor  resides  in  the  same  house,  he  of 
course  sees  about  the  repairs. 

In  Hallmmi  v.  Daniel,  August  22,  1871,  Chief  Koffie  Chie  and 
others  laid  down  the  law,  in  answer  to  the  inquiry  :  — If  a  man  went 


Chap.  XII,  §  6.]  FANTI   CUSTOMARY   LAW  377 

from  his  family,  cleared  land,  and  on  that  land  built  another 
house,  would  not  his  children  be  entitled  to  live  in  it  after  his 
decease?  that  "if  a  man  had  a  father,  either  by  country  mar- 
riage or  otherwise,  and  the  father  lived  in  the  house  with  the  wife 
and  child,  and  he  died,  all  the  deceased's  property,  except  the 
house,  goes  to  his  family.  The  father's  gun  and  sword  and  house 
go  to  the  son,  and  the  saying  is,  '  the  father  dies  and  leaves  his 
house  to  the  son.' 

**  The  family  take  the  property,  but  do  not  turn  away  the  child. 
The  son  lives  in  the  house  with  the  family  of  his  father,  supposing 
they  had  nowhere  else  to  live,  and  the  son  does  not  turn  them 
away.  If  it  is  a  family  house,  the  head  occupies  as  head ;  yet  he 
does  not  turn  away  the  son  from  the  house,  except  the  son,  after 
he  has  grown  up,  finds  himself  competent  to  build  and  leaves  for 
the  purpose  of  doing  so.  But  he  would  not  under  any  circum- 
stances be  turned  out  by  the  head  of  the  family. 

"  The  family  would  not  be  turned  out  for  the  son's  accommo- 
dation. If  they  had  nowhere  else  to  live,  they  would  live  in  the 
house.  Where  there  is  room  enough  for  all  (son  and  family), 
the  head  of  the  family  arranges  the  rooms  to  be  allotted  to  each. 
My  answer  of  the  descent  of  house  to  the  son  applies  in  case  it  has 
been  built  by  the  father.  The  family  would  be  allowed  to  live  in 
it  if  they  had  nowhere  else  to  go ;  if  they  had,  they  would  leave 
the  father's  house  to  the  son.  The  son  could  not  sell  the  house 
except  with  consent  of  the  family." 

In  the  coast  towns,  one  now  and  then  comes  across  what  at  first 
sight  seems  to  be  an  exception  to  the  general  rule  of  succession. 
There  are  some  families  where  succession  goes  from  father  to  son ; 
but  this  has  reference  only  to  the  dignity  or  title  or  office,  with 
such  property  or  insignia  going  with  it,  and  which  was  in  the 
first  instance  created  with  it.  Such  a  position  is  quite  distinct 
from  that  of  head  of  family,  although  a  person  may  hold  the  two 
offices  at  the  same  time  :  e.g.  B  is  head  of  a  wealthy  family  having 
and  possessing  a  large  retinue.  The  townspeople  make  him  their 
king,  or  chief,  and  give  him  by  general  contribution  a  sword,  robes, 
drum,  etc.  If  at  any  time  the  people  depose  him,  the  only  prop- 
erty they  can  take  from  him  will  be  what  was  handed  him  on  his 
installation  as  king  or  chief,  at  which  time  he  took  the  oath  of 
-office,  swearing  to  be  true  and  faithful  to  the  interests  of  his 
subjects.  And  unless  the  members  of  his  family  remove  him,  he 
nevertheless  continues  head  of  his  family,  although  another 
person  be  given  the  public  honour  and  office. 


378  RETARDED   PEOPLES  [Part  II. 

Where  the  deceased  is  a  slave  or  domestic,  his  master  or  mistress 
is  entitled  to  take  all  the  property,  but  if  another  slave  or  domestic 
is  appointed  as  successor,  the  master  or  mistress  takes  from  the 
personal  effects  whatever  he  or  she  pleases. 

If  a  person  whose  ancestress  was  a  slave  die  without  issue, 
there  being  no  descendants  of  the  ancestress's  master  or  mistress, 
his  fellow  domestic  takes  his  property  as  successor  :  e.g.  B  is  great- 
grandchild of  C,  a  donkor  of  A ;  D  is  descendant  of  A,  and  there 
are  in  the  family  (i.)  several  domestics,  (ii.)  but  one  domestic. 
On  the  death  of  B,  D  may  keep  B's  effects  or  give  some  to  such 
one  of  the  domestics  as  he  please.  If  there  be  no  descendant  or 
heir  of  D  her  surviving  (i.),  the  head  domestic  succeeds;  (ii.)  the 
one  domestic  takes,  and  no  tribal  or  clan  relative  can  take  pref- 
erence, for  the  donkors  invariably  acquire  their  owner's  tribal 
name,  and  bondmen  often  join  the  master's  tribe. 

He  who  succeeds  a  person  owning  self-acquired  property  is  liable 
for  and  bound  to  pay  the  private  debts  of  the  deceased,  whether 
the  assets  are  or  are  not  sufficient.  An  heir,  if  he  sees  that  his 
deceased  relative  is  greatly  indebted,  can  give  the  body  to  the 
company  of  the  deceased,  and  on  the  body  being  buried  at  the 
expense  of  the  company  or  the  public,  the  heir  and  his  family  are 
not  liable  at  all  for  any  debt  of  the  deceased.  Any  property  left 
by  the  deceased  is  sold  by  the  public  to  defray  any  burial  expenses. 

In  the  early  part  of  1891,  Chief  Justice  Hutchinson  sought 
information  on  certain  points  of  the  Customary  Law  from  the 
late  Edmund  Bannerman,  of  Accra,  that  eminent  solicitor  and 
advocate  whose  knowledge  of  the  Customary  Law  and  experi- 
ence in  the  Law^  Courts  were  unsurpassed. 

Mr.  Bannerman' s  opinion  relates  specially  to  the  Accra  district, 
but  it  will  be  noticed  that  the  Accra  customary  laws  differ  very 
little  from  what  have  been  explained  herein.  Says  Mr.  Bannerman  : 
''  Before  answering  the  first  question,  it  will  be  as  well  to  explain 
that  there  are  two  forms  of  marriages  obtainable  in  the  Accra 
country  proper,  namely,  what  is  known  as  the  two-cloth,  or  siveet- 
heart,  and  the  other  is  six-cloth,  or  legal  marriage.  With  refer- 
ence to  the  first,  personal  property  only  descends  as  follows : 
(a)  to  the  uterine  brothers  of  the  deceased,  the  eldest  taking 
first;  (6)  failing  the  brothers,  the  uterine  sisters  and  their  chil- 
dren take  by  seniority. 

"  The  children  by  the  two-cloth  marriage  do  not  come  in  at  all. 

"  (c)  With  reference  to  the  second,  that  is,  six-cloth  marriage, 
real  property  descends  the  same  as  personal  property,  with  this 


I 


Chap.  XII,  §  6.]  FANTI   CUSTOMARY   LAW  "  379 

exception,  that  it  is  inherited  in  conjunction  with  the  children  of 
the  deceased  of  that  marriage,  and  such  real  property  cannot  be 
disposed  of  without  the  children's  consent.  It  must  be  borne  in 
mind  that  in  the  Accra  country  males  take  precedence  of  females, 
and  if  minors,  the  eldest  female  takes  charge  until  the  eldest 
male  be  of  age.  I  am  well  aware  that  opinions  varying  in  part 
to  mine  have  been  given,  but  it  is  most  absurd  to  think  that  there 
should  exist  two  forms  of  marriages,  one  superior  to  another,  and 
yet  the  claims  of  the  children  of  one  marriage  to  their  father's 
property  is  the  same  as  the  claim  of  the  children  of  the  other. 

'^  (d)  Property  acquired  by  the  deceased,  he  can  either  in  writ- 
ing or  verbally  will  away  to  whomsoever  he  pleases,  but  should 
he  die  intestate,  it  then  descends  according  to  (a),  (6),  and  (c). 

"  Property  inherited  descends  precisely  in  the  same  manner  as 
property  acquired,  with  the  exception  that  the  deceased  has  no 
power  to  will  it  away,  as  in  the  case  of  property  acquired. 

''The  mother  does  not  come  in  at  all,  but  the  inheritor  of  the 
property  is  bound  to  take  care  of  her  durante  vita,  and  at  her 
demise  to  bury  her  decently. 

"  A  woman's  property  acquired  by  herself  descends  to  her  chil- 
dren and  their  children ;  failing  them,  then  to  brothers  or  sisters 
according  to  age. 

"  No  child  can  inherit  his  father's  property  except  under  the 
circumstances  related  in  (a),  (6),  and  (c). 

''  There  are  instances  where  the  son  has  inherited  the  stool  and 
property  strictly  attached  to  the  stool ;  e.g.  the  case  of  King  Fred- 
erick Dowoonah,  of  Christiansborg,  Accra ;  but  generally  inherit- 
ance of  stool  jumps  from  one  branch  of  the  family  to  another  and 
back  again.  Should  the  holder  of  the  stool,  however,  acquire 
any  property  of  his  own  durante  vita,  that  property  cannot  go  to 
the  inheritor  of  the  stool,  but  must  descend  as  stated  in  (a),  (h), 
and  (c). 

"  No  man  can  appoint  an  inheritor  to  property  which"  he  in- 
herited, but  the  property  acquired  by  himself.  The  inheritor 
appointed  may  be  a  person  who  is  not  the  next  heir,  but  such 
person  must  go  through  the  formality  of  custom,  making  expenses 
of  funeral  and  paying  all  the  deceased's  just  debts. 

"  Th^  right  of  the  heir  of  personal  property  is  absolute,  but  he 

bound  to  assist  any  member  who  is  in  real  distress. 

"  The  heir  is  bound  himself  to  pay  all  the  just  debts  of  the  de- 
ceased's, and  also  the  expenses  of  the  funeral  custom. 

Any  person  not  being  the  heir,  but  who  with  the  heir's  consent 


380  '  RETARDED   PEOPLES  [Part  II. 

performs  and  pays  for  the  custom,  does  not  acquire  any  right 
whatsoever  to  the  property,  but  has  simply  to  be  reimbursed  for 
what  he  has  expended. 

"  The  heir  can  be  superseded  by  other  members  of  the  family 
on  the  ground  of  insanity,  imbecility,  extravagance,  etc.  There 
need  not  be  a  majority  to  supersede  him.  Two  or  three  of  the 
nearest  members  are  quite  sufficient  for  the  purpose. 

"  Should  a  man  die  without  any  known  heir  (a  thing  utterly 
unknown  as  regards  natives),  his  property  would  be  taken  charge 
of  by  the  owner  of  the  house  in  which  he  stayed  when  he  came  into 
the  country,  who  will  see  all  funeral  expenses  and  debts  paid; 
and  should  any  heir  ever  turn  up,  he  or  she  alone  is  responsible 
to  him  or  her. 

"  Any  child  can  inherit  the  property  of  his  mother,  bastardy 
being  a  thing  hardly  recognized  in  this  country." 

Bosman,  writing  on  inheritance,  says :  "■  The  children  they 
have  by  their  wives  are  indeed  legitimate,  but  all  along  the  Gold 
Coast  (they)  never  inherit  their  parent's  effects  except  at  Accra 
only.  The  right  of  inheritance  is  very  oddly  adjusted,  and  as 
far  as  I  could  observe,  the  brothers'  and  sisters'  children  are  the 
right  and  lawful  heirs  in  the  manner  following :  They  do  not  jointly 
inherit,  but  the  eldest  son  of  his  mother  is  heir  to  his  mother's 
brother  or  her  son,  as  the  eldest  daughter  is  heiress  of  her  mother's 
sister  or  her  daughter.  Neither  the  father  himself  nor  his  rela- 
tions as  brothers'  sisters  have  any  claim  to  the  goods  of  the  de- 
funct. In  deficiency  of  the  above-mentioned  heirs,  the  brothers 
or  sisters  take  their  place ;  but  if  none  of  them  are  living,  then  the 
nearest  relation  of  the  mother  of  the  defunct  comes  in. 

''  The  eldest  son,  supposing  the  father  a  king  or  a  captain  of  a 
town,  succeeds  him  in  his  office  only;  but  besides  his  father's 
shield  and  sabre  he  has  nothing  more  to  pretend  to.  So  that 
'tis  here  no  manner  of  advantage  to  be  descended  from  rich 
parents,  unless  (which  seldom  happens)  paternal  love  obliges  them 
to  bestow  somewhat  on  their  children  in  their  lifetime,  which  must 
be  privately  done,  otherwise  the  relations  after  the  father's  death 
will  oblige  the  children  to  return  it  to  the  utmost  farthing.'* 
(Bosman,  letter  xii.  pp.  203,  204.) 

John  Barbot,  the  agent-general  of  the  French  Royal  Company 
of  Africa  and  islands  of  America,  who  was  a  contemporary  of  Bos- 
man, in  connection  with  this  custom,  says :  ''  The  best  reason  the 
blacks  give  for  such  a  constitution,  is,  that  the  dividing  of  estates 
or  goods  among  so  many  persons  as  generally  compose  their  fam- 


Chap.  XII,  §  7.]  FANTI   CUSTOMARY   LAW  381 

ilies,  so  many  wives  and  children,  would  occasion  endless  disputes 
and  quarrels  amongst  them;  or,  this,  that  children  relying  too 
much  on  their  father's  wealth,  would  live  lazily,  without  any 
inclination  to  employ  themselves  in  some  business,  to  avoid  lewd- 
ness, wantonness,  and  debauchery.  Whereas  being  now  sensible 
from  their  tender  youth  that  they  have  nothing  to  expect  from  their 
father  but  a  bare  maintenance  during  his  life,  they  are  much  the 
readier  to  betake  themselves  early  to  learn  some  profession  by 
which  they  may  maintain  themselves  handsomely  when  their 
father  is  no  more;  and  even  to  maintain  their  father's  family 
after  his  death,  as  many  do." 

VII.    MODES  OF  ENFORCING  PAYMENT 

There  are  several  modes  of  enforcing  payment  of  liability  more 
or  less  common.  I.  "  Dharna,"  a  practice  well  known  in  India, ^ 
especially  in  the  native  states.  The  word  "  Dharna "  is^aid 
to  be  an  exact  equivalent  to  the  Romsin^capio.  The  person  who 
adopts  this  means  of  enforcing  payment  of  his  claim  goes  early 
in  the  morning  to  the  door  or  house  of  the  person  against  whom 
it  is  directed,  or  to  the  place  where  the  debtor  usually  follows  his 
occupation.  Here  the  creditor,  covered  over  with  white  clay  or 
in  sackcloth  and  ashes,  and  having  a  supply  of  food  sufficient  for 
one  meal,  seats  himself  on  a  mat  or  on  the  bare  ground.  He 
informs  the  debtor  that  unless  the  debt  is  paid  to  the  last  farthing 
he  will  not  go  away,  and  if  the  debtor  goes  out  this  creditor  fol- 
lows him  everywhere.  Instances  are  known  where  the  debt  not 
having  been  paid  the  creditor  has  died  of  starvation.  Sometimes, 
as  the  day  draws  to  a  close,  the  creditor  swears  to  commit  suicide 
if  the  debt  be  not  paid  before  sunset.  If  in  such  a  case  the  debt 
be  not  paid,  and  the  creditor  doth  commit  suicide,  the  debtor  is 
bound  to  bear  the  funeral  expenses  in  addition  to  paying  the  origi- 
nal debt  and  making  substantial  compensation  to  the  family  of  the 
deceased  creditor.  But  when  the  creditor  swears  that  if  by  a 
certain  time  the  debt  be  not  paid  he  and  the  debtor  must  both 
forfeit  their  lives,  the  debtor  cannot  save  his  life  by  simply  paying 
the  debt  and  a  compensation ;  he  too  must  take  away  his  life. 

It  is  worthy *of  notice  that  in  the  Brehon  law,  if  a  person  has  a 
legal  claim  against  a  man  of  a  certain  rank,  and  is  desirous  of  com- 
pelling payment,  the  law  authorizes  him  to  "fast  upon  him." 
Notice,  it  says,  precedes  distress  in  the  case  of  the  inferior  grades, 
except  it  be  by  persons  of  distinction  or  upon  persons  of  distinc- 


382  RETARDED   PEOPLES  [Part  II. 

tion;  fasting  precedes  distress  in  their  case.  (Ancient  Laws  of 
Ireland.)  This  institution  is  said  by  Sir  Henry  Maine  to  be  un- 
questionably identical  with  one  widely  diffused  throughout  the 
East,  and  known  by  the  Hindoos  as  *' Sitting  Dharna,"  which  con- 
sists in  sitting  at  your  debtor's  door  and  starving  yourself  till  he 
pays. 

II.  There  are  two  kinds  of  Panyarring,  namely,  (a)  persons, 
(6)  chattels. 

(a)  Among  the  coast  tribes  and  members  of  the  same  tribe, 
panyarring  of  persons  was  not  customary.  When  a  member  of  a 
different  tribe  was  found  in  a  distant  place  he  was  liable  to  be 
seized  with  all  his  goods,  and  detained  in  bondage  for  a  debt  due 
by  a  member  of  his  tribe  till  such  debt  had  been  paid  to  the  satis- 
faction of  the  person  or  creditor  who  had  so  detained  him. 

(b)  A  creditor  whose  claim  remains  unsatisfied  after  repeated 
demands,  followed  by  unfulfilled  promises  or  payment  by  the 
debtor,  is  entitled  to  seize  his  debtor's  goods  and  chattels,  usually 
of  a  higher  value  and  retain  them  till  his  claim  is  satisfied  in  full. 
The  creditor  has  no  power  or  right  to  sell  the  goods  so  seized  or  to 
use  them ;  but  he  is  under  no  obligation  to  take  any  special  care  of 
them,  or  to  account  for  their  safe  custody  or  keeping. 

Panyarring  (pronounced  payaring)  is  rather  a  law  than  a  custom, 
and  although  sometimes  prostituted  to  bad  purposes,  is  frequently 
the  only  way  to  recover  a  just  debt.  If  exercised  unlawfully,  the 
amount  of  damages  to  be  paid  as  satisfaction  is  so  much  as  to  cause 
the  financial  ruin  of  the  WTong-doer. 

III.  Payment  of  debts  is  also  enforced  by  the  debtor  being 
detained  in  custody,  imprisoned  in  chief's  prison  or  at  the  village 
lock-up  till  payment  is  made.  The  debtor  meanwhile  has  to 
subsist  himself  or  get  his  family  or  friends  to  do  so,  failing  which 
he  is  forced  to  do  hard  labor  by  way  of  return  for  his  board.  So 
effective  is  this  custom  that,  except  in  very  rare  cases,  the  debtor's 
family  quickly  make  a  contribution  and  pay  the  debt  in  full. 
During  the  administration  of  the  African  Association  and  Gov- 
ernor Maclean,  judgment  debtors  were  never  subsisted  by  their 
creditors.  On  their  friends  failing  to  look  after  them,  they  were 
compelled  to  earn  their  food  by  being  put  to  some  remunerative 
occupation  within  the  precincts  of  the  prison. 


PART  III 
ANCIENT  AND  PRIMITIVE  LAWS  AND  CODES 

Chapter  XIII 

ANCIENT  ACCADIAN   LAWS 
Translated  by  Rev.  A.  H.  Sayce 

Chapter  XIV 
THE   CODE   OF   HAMMURABI 

Translated  by  W.  W.  Davies 

Chapter  XV 
THE  PENTATEUCH 

Chapter  XVI 
EDICT   OF   HARMHAB 

Translated  by  James  H.  Breasted 

Chapter  XVII 

LAWS   OF   GORTYN 

Translated  by  H,  J.  Roby 

Chapter  XVIII 

THE   TWELVE   TABLES 

Translated  by  John  H.  Wigmore 

Chapter  XIX 

LAWS   OF  MANU 
Translated  by  Georg  Buhleb 

Chapter  XX 
THE   LEX   SALICA 

Translated  by  Ernest  F.  Henderson 

Chapter  XXI 

KING  ^THELBIRHT'S   DOOMS 
Translated  by  Benjamin  Thorpe 

Chapter  XXII 
LAWS  OF  HOWEL 

Translated  by  Aneurin  Owen 


Chapter  XIII 
ANCIENT  ACCADIAN  LAWS»     /k {^i^^- V'-^^'^^ ^' 

1  A  certain  man's  ^  brother-in-law  hired  (workmen)  and  on  his 
foundation  built  an  enclosure.  From  the  house  (the  judge) 
expelled  him. 

2  In  every  case  let  a  married  man  put  his  child  in  possession  of 
property,  provided  that  he  does  make  hira  inhabit  it. 

3  For  the  future  (the  Judge  may)  cause  a  sanctuary  to  be 
erected  in  a  private  demesne. 

1  [Translated  by  Rev.  A.  H.  Sayce.  Reprinted,  by  permission,  from 
"Records  of  the  Past,"  Vol.  Ill,  p.  21,  seq.,  Samuel  Bagster  and  Sons, 
London.] 

Translator's  Note 

The  Accadians  were  the  inventors  of  the  cuneiform  system  of  writing 
and  the  earliest  population  of  Babylonia  of  whom  we  know.  They  spoke 
an  agglutinative  language  allied  to  Finnic  or  Tatar,  and  had  originally 
come  from  the  mountainous  country  to  the  south-west  of  the  Caspian. 
The  name  Accada  signifies  "highlander,"  and  the  name  of  Accad  is  met 
with  in  the  10th  chapter  of  Genesis.  The  laws,  of  which  a  translation  is 
given,  go  back  to  a  very  remote  period ;  and  the  patriarchal  character  of 
society  implied  by  them  will  be  noticed,  as  well  as  the  superior  importance 
possessed  by  the  mother,  denial  of  whom  by  the  son  involved  banishment 
in  contrast  with  the  milder  penalty  enjoined  for  renunciation  of  the 
father.  This  importance  of  the  mother  in  family-life  is  still  a  distinguish- 
ing feature  of  the  Finnic-Tatar  race.  The  slave,  it  will  be  seen,  was 
already  placed  to  some  extent  under  the  protection  of  the  state,  and  the 
first  step  on  the  road  towards  the  amelioration  of  his  condition  had  been 
made. 

A  considerable  portion  of  the  tablet  which  contains  these  laws  is  given 
in  Vol.  II,  pi.  10,  "Cuneiform  Inscriptions  of  Western  Asia."  Other 
fragments,  since  discovered,  have  been  lithographed  by  M.  Frangois 
Lenormant  in  his  "Choix  de  Textes  Cuneiformes,"  Part  I,  No.  15.  The 
original  Accadian  text  runs  down  the  left-hand  column,  an  Assyrian  trans- 
lation being  annexed  on  the  right.  The  several  laws  are  divided  by  lines, 
and  come  at  the  end  of  a  bilingual  collection  of  ancient  documents  of 
different  kinds  but  chiefly  relating  to  law.  They  are  introduced  by  a  list 
of  Accadian  legal  terms  with  their  Assyrian  equivalents.  The  whole 
was  compiled  for  Assur-bani-pal's  Library.  Mr.  Fox  Talbot  was  the 
first  to  point  out  the  nature  of  the  inscription ;  and  I  gave  a  translation 
of  the  published  portions  of  it  in  the  "Athenaeum"  for  May,  1869,  which  was 
supplemented  by  Mr.  G.*Smith  in  a  later  number  of  the  same  periodical. 
Translations  of  the  most  important  part  of  it  have  been  recently  given  by 
M.  Oppert  in  the  "Journal  Asiatique,"  7  ieme  serie,  I,  and  M.  F.  Lenormant 
in  "La  Magie  chez  le  Chaldeens,     pp.  310,  311. 

The  first  and  second  columns,  on  the  obverse  of  the  tablet,  are  unfor- 
tunately too  mutilated  for  translation,  it  is  therefore  only  the  last  two 
columns,  on  the  reverse,  of  wliich  a  rendering  is  ajipended. 

2 Literally  "his  brother-in-law." 

385 


386  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

4  (A  man)  has  full  possession  of  his  sanctuary  in  his  own  high 
place. 

5  The  sanctuary  (a  man)  has  raised  is  confirmed  to  the  son  who 
inherits. 

6  Effaced. 

7  His  father  and  his  mother  (a  man)  shall  not  (deny) . 

8  A  town  (a  man)  has  named ;  its  foundation-stone  he  has  not 
laid;   (yet)  he  (can)  change  it. 

9  This  imperial  rescript  must  be  learnt. 

10  Everything  which  a  married  woman  encloses,  she  (shall) 
possess. 

11  In  all  cases  for  the  future  (these  rules  shall  hold  good). 

12  A  decision.  A  son  says  to  his  father :  Thou  art  not  my  father, 
(and)  confirms  it  by  (his)  nail-mark  (on  the  deed) ;  he  gives 
him  a  pledge,^  and  silver  he  gives  him. 

13  A  decision.  A  son  says  to  his  mother :  Thou  art  not  my 
mother ;  his  hair  is  cut  off,  (in)  the  city  they  exclude  him  from 
earth  (and)  water  ^  and  in  the  house  imprison  him.^ 

14  A  decision.  A  father  says  to  his  son  :  Thou  art  not  my  son ; 
in  house  and  brick  building  they  imprison  him. 

15  A  decision.  A  mother  says  to  her  son  :  Thou  art  not  my  son ; 
in  house  and  property  they  imprison  her. 

16  A  decision.  A  woman  is  unfaithful  to  her  husband  and  says 
to  him  :  Thou  art  not  my  husband ;  into  the  river  they  throw  her. 

17  A  decision.  A  husband  says  to  his  wife :  Thou  art  not  my 
wife ;  half  a  maneh  of  silver  he  weighs  out  (in  payment) . 

18  A  decision.  A  master  kills  ^  (his)  slaves,^  cuts  them  to  pieces, 
injures  their  offspring,^  drives  them  from  the  land  and  makes 
them  small ;  ^  his  hand  every  day  a  half-measure  of  corn  measures 
out  (in  requital). 

The  writing  (of  this  tablet  is)  as  above,  (beginning;)  "every 
dawn,  an  oath."  Seventh  tablet  (of  the  series  which  begins :) 
"to  be  with  him." 

(Copy)  belonging  to  Assyria,  like  its  old  (text  is)  it  written  and 
engraved.  The  country  of  Assur-bani-pal  (Sardanapalus), 
the  mighty  King,  King  of  Assyria. 

1  In  the  Assyrian  version  "he  recognises  his  pledge  to  him." 

2  In  the  Assyrian  version  "they  humble  him." 

3  In  the  Assyrian  version  "they  expel  him." 

*  In  the  Assyrian  version  "saws  asunder  and  kills." 

*  In  the  Assyrian  version  "a  slave." 

*  In  the  Assyrian  version  "beats." 

'  In  the  Assyrian  version  "makes  ill." 


.-'' 


B89 


#- 


Chapter  XIV 
THE   CODE   OF  HAMMURABI  i 


If  a  man  make  a  false  accusation  against  a  man,  putting  a  ban 
upon  him,  and  can  not  prove  it,  then  the  accuser  shall  be  put  to 
death. 

1  [Reprinted  with  the  permission  of  the  Methodist  Book  Concern  from 
"The  Codes  of  Hammurabi  and  Moses  (with  copious  comments,  index, 
and  Bible  references) "  by  W.  W.  Da  vies,  Ph.  D.,  Professor  of  Hebrew  in 
the  Ohio  Wesleyan  University. 

The  following  account  of  this  code  (by  Professor  Wigmore)  is  reprinted 
from  "Northwestern  University  Bulletin,"  Vol.  XIV,  No.  25  (March  6th. 
1914)]  : 

The  Law  School  has  recently  acquired,  for  the  Elbert  H.  Gary  Library 
of  Law,  a  cast,  in  facsimile,  of  the  Code  of  Hammurabi,  the  oldest  law-code 
in  the  world.  The  original  is  a  pillar  of  dark  stone,  some  eight  feet  high 
and  two  feet  across,  and  now  stands  in  the  Museum  of  the  Louvre,  in 
Paris.  It  was  discovered  in  1902  at  Susa,  near  the  Persian  gulf,  by  a 
French  archaeological  expedition  under  M.  de  Morgan. 

The  Code  is  inscribed  on  the  obverse  and  reverse  of  the  pillar,  in  col- 
umns of  cuneiform  characters.     It  forms  some  282  sections  in  all. 

Its  somber  appearance,  its  massive  dimensions,  and  the  sentiment  of 
its  tremendous  antiquity  make  it  a  profoundly  impressive  object. 

Immediately  on  its  discovery  the  scientl^c  world  was  agitated  by  its 
possibilities  of  renewed  revelation  for  the  sciences  of  archaeology,  sacred 
history,  and  legal  evolution.  Translations  were  soon  published  in  Ger- 
man, English,  French,  and  Italian,  and  the  discussion  of  its  various 
aspects  continues  unabated. 

Its  first  special  interest  lies,  of  course,  in  the  fact  that  it  is  the  oldest 
known  code  of  laws.  The  simple  Twelve  Tables  of  Roman  law  date  only 
about  300  B.C. ;  the  lost  codes  of  Solon,  Draco,  and  Lycurgus  go  no  fur- 
ther back  than  800  or  900  b.c.  ;  the  Hindu  code  of  Manu  and  the  early 
Chinese  code  no  further  than  1000  b.c.  ;  and  the  Hebrew  legislation  is 
not  earlier  than  700  b.c.  This  code  of  Hammurabi  is  known  to  date 
from  2270  b.c.  or  thereabouts.  [Semitic  scholars  differ,  by  a  century  or 
two,  upon  the  date.] 

Another  feature  of  interest  is  that  it  represents  the  law  of  probably  the 
most  advanced  of  ancient»civilizations  —  Babylonia.  At  the  time  when 
we  first  meet  these  nations  in  history,  their  laws  are  in  a  primitive  stage 
(relatively  speaking).  This  is  true  of  the  Jews,  the  Arabs,  the  Hindus, 
the  Chinese,  and  the  Germanic  and  Celtic  stocks.  Even  the  Romans, 
at  the  time  of  the  Twelve  Tables  (about  300  b.c.)  were  still  primitive. 
Only  Egypt  can  be  compared  with  Babylon.  But  Babylon  had  alread^^ 
outstripped  Egypt,  at  the  time  of  Hammurabi,  in  the  development  of 
commerce  and  commercial  law. 

The  most  valuable  service  of  this  Code  is  its  explicit  revelation  of  the 
legal  principles  which  mark  its  type  of  legal  system.     A  people's  code  or 

387 


381 

388  ANCIENT   AND   PRIMITIVE   LAWS   AND   CODES  [Part  III. 

Johns  renders  the  first  clause:  "If  a  man  weave  a  spell;"  Hari>er 
renders  the  second  clause,  "and  charge  him  with  a  [capital]  crime." 
There  can  be,  however,  little  doubt  but  that  this  law  was  directed  against 
withcraft  or  magic. 

The  Hebrews  legislated  as  follows  : 

Thou  shalt  not  suffer  a  sorceress  to  live.     (Ex.  22  :  18). 

system  of  law  is  not  a  mere  fiat.  It  is  a  part  of  the  legal  life  and  con- 
sciousness of  a  people.  Hence  it  represents  a  stage  of  their  legal  growth. 
Each  people  or  nation  has  had  its  own  growth  and-represfints-sm^&-4^per- 
Just  as  a  buffalo  or  a  dinosaur  or  a  pterodactyl  or  a  whale  has  a  set  of 
bones  and  organs  forming  a  genus  or  species,  and  just  as  the  study  of  a 
complete  animal  of  any  species  enables  us  to  determine  its  type,  and  thus 
to  compare  the  growth  and  relations  of  specific  organs  in  other  genera  or 
species,  so,  in  the  study  of  comparative  law,  the  typical  legal  ideas. are 
found  to  have  a  different  or  similar  growth  and  relation  in  different 
'peoples.  And  the  discovery  of  a  fairly  complete  legal  system  in  Babylon, 
at  !so  ancient  a  period,  enables  us  to  extend  our  knowledge  of  the  growth 
and  relations  of  the  chief  legal  ideas  recurrent  among  all  peoples. 

A  glance  at  some  of  the  provisions  of  the  Code 'of  Hammurabi  will 
illustrate  this  and  will  prevent  us  from  looking  upon  it  merely  as  an  anti- 
quarian curiosity  or  a  collection  of  odd-sounding  rules. 

Some  of  its  provisions  point  to  a  still  very  primitive  legal  system  — 
e.g.,  it  preserves  the  retaliatory  penalties  —  an  eye  for  an  eye,  a  tooth  for 
a  tooth.  It  also  preserves  liability  for  accidental  harm,  which  marks 
C.II  primitive  systems. 

Jthexs  of  its  provisions  show  a  semi-advanced  condition,  e.g.,  personal 
revenge,  the  family  feud,  has  disappeared,  and  all  justice  is  administered 
by  the  State.  For  many  wrongs  fixed  sums  are  payable  as  damages. 
The  liability  of  the  family  or  children  for  the  parents'  offenses  is  inher- 
ited in  only  two  or  three  instances.  The  debtor's  liability  is  still  personal ; 
his  property  is  not  yet  liable  separately. 

Finally,  some  of  the  provisions  show  the  Babylonians  in  a  stage  the 
most  advanced  of  all  civilizations  prior  to  that  of  Rome  under  the  em- 
perors ;  e.g.,  aliens  are  not  subjected  to  discrimination  in  commercial  or 
other  rights.  Land  is  held  by  individual  ownership,  not  in  common. 
Trade  and  commerce  are  cor:iplex;  there  are  rules  for  warehousing,  for 
agency  and  partnership,  for  various  kinds  of  contracts;  and  all  con- 
tracts must  be  reduced  to  writing.  In  one  notable  respect  there  is  here 
a  baclrs\^ardness ;  for  the  protection  given  to  an  innocent  purchaser 
(market  oyr^t,  purchase  for  value  without  notice)  is  incomplete. 

In  family  and  succession  law  we  note  that  at  Babylon  marriage  is  a 
developed  typ^  of  marriage  by  purchase,  with  a  dowrv  froin  thp  -jx^if^'^ 
father ;  that  there  is  no  primogeniture  (only  a  double  share  to  the  eldest 
ton) ;  that  daughters  do  not  inherit  if  there  are  sons ;  and  that  there  is 
no  marked  trace  of  either  endogamy  or  exogamy  {i.e.,  marriage  limited 
tc  women  within  or  without  the  clan). 

All  of  these  features,  found  in  this  particular  combination,  are  of  the 
highest  interest.  No  other  legal  svstem,  it  may  be  said,  possesses  just 
this  combination  at  a  given  time.*  Thus  the  study  of  the  Babylonian 
system  will  throw  new  light  on  the  stages  and  forms  of  growth  of  each  of 
these  separate  legal  principles,  as  well  as  on  the  possibilities  of  their  com- 
binalion  with  each  other  in  the  law  of  a  given  people. 

In  the  science  of  comparative  legal  history  (which  is  as  yet  in  its  in- 
fancyy^  Babylon  and  Egypt  appear  as  the  two  great  people's  of  the  pre- 
Ohnstian  era.  They  fat  surpass  the  others  in  the  fertility  of  their  legal 
ideas  and  m  their  utility  for  our  edification.  Thus  far,"  and  until  the 
possible  discovery  of  some  corresponding  code  in  Eg>'pt,  the  Code  of 
King  Hammurabi  places  Babylon  in  the  forefront  of  'modern  scientific 
interest. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  389 

And  also : 

A  man  or  a  woman  that  hath  a  familiar  spirit,  or  that  is  a  wizard, 
shall  surely  be  put  to  death;  they  shall  stone  them  with  stones. 
(Lev.  20  :  27.     See  also  Lev.  19  :  26-31.) 

The  fact  that  the  code  opens  with  laws  against  magic  or  sorcery  seems 
to  prove  the  prevalence  of  such  practices  among  the  early  Babylonians, 
and  the  severity  of  the  penalty  is  a  clear  proof  that  the  people  were  super- 
stitiously  afraid  of  those  who  practiced  magic. 


If  a  man  charge  a  man  of  being  a  sorcerer,  and  is  unable  to  sus- 
tain such  a  charge,  the  one  who  is  accused  shall  go  to  the  river,  he 
shall  plunge  himself  into  the  river,  and  if  he  sink  into  the  river,  his 
accuser  shall  take  his  house.  If,  however,  the  river  show  forth  the 
innocence  of  this  man,  and  he  escape  unhurt,  then  he  who  accused 
him  of  sorcery,  shall  be  put  to  death,  while  he  who  plunged  into 
the  river  shall  appropriate  the  house  of  his  accuser. 

It  will  be  noticed  that  the  Babylonians  employed  ordeals  to  test  the 
guilt  or  innocence  of  persons  suspected  of,  or  charged  with,  sorcery,  and 
also  in  connection  with  women  charged  with  marital  infidelity.  Such 
tests  or  ordeals  in  some  form  or  another  have  been  common  to  most  na- 
tions, even  down  to  comparatively  recent  times.  They  are  still  employed 
in  Bible  lands.  We  have  all  heard  of  the  ordeal  by  fire,  and  also  by  water, 
which  were  practiced  in  England  in  the  Dark  Ages.  It  is  not  recorded 
that  the  Hebrews  did  at  any  time  in  their  history  plunge  suspected  parties 
into  the  water,  but  the  same  principle  is  illustrated  in  the  so-called 
"waters  of  jealousy,"  so  fully  described  in  Num.  5 :  11-31,  where  we  read 
that  any  woman  suspected  of  infidelity  to  her  husband  had  to  drink  a 
large  quantity  of  water  prepared  in  a  certain  manner.  It  is  possible 
that  the  Hebrews  employed  other  forms  of  ordeal.  The  name  En- 
Mishpat,  "well  of  judgment,"  may  have  originated  from  such  a  prac- 
tice.    See  also  Psa.  109  :  18 ;   Prov.  6  :  27-29. 

It  is  remarkable  that  the  victim,  and  not  the  sorcerer,  was  to  plunge 
into  the  water.  The  principle,  of  course,  is  the  same,  for  the  sacred  water 
will  save  and  protect  the  innocent. 


If  a  man  (in  a  case  pending  judgment)  threaten  the  witnesses, 
or  do  not  establish  that  which  he  has  testified,  if  that  case  be  a  case 
involving  life,  that  man  shall  be  put  to  death. 

The  corresponding  law  in  the  Mosaic  Code  is: 

If  an  unrighteous  witness  rise  up  against  any  man  to  testify 
against  him  of  wrong  doing ;  then  both  the  men,  between  whom 
the  controversy  is,  shall  stand  before  the  Lord,  before  the  priests 
and  the  judges  who  shall  be  in  those  days ;  and  the  judges  shall 
make  diligent  inquisition;   and,  behold,  if  the  witness  be  a  false 


390  ANCIENT  AND   PRIMITIVE  LAWS  AND   CODES  [Pabt  III. 

witness  and  hath  testified  falsely  against  his  brother;  then  shall 
ye  do  unto  him,  as  he  had  thought  to  do-  unto  his  brother.  (Deut. 
19:  16-19.) 

4 

If  a  man  offer  as  a  bribe  grain  or  money  to  witnesses,  he 
himself  shall  bear  the  sentence  of  the  court  in  that  case. 

We  read  in  Ex.  23:8: 

And  thou  shalt  take  no  gift ;  for  a  gift  blindeth  them  that  have 
sight,  and  perverteth  the  word  of  the  righteous. 


If  a  judge  pass  judgment,  render  a  decision,  deliver  a  verdict, 
signed  and  sealed,  and  afterwards  alter  his  judgment  which  he  has 
rendered,  he  shall  be  called  to  account  for  the  alteration  of  the 
judgment,  and  he  shall  pay  twelve-fold  the  penalty  which  was  in 
the  said  judgment ;  and,  in  the  assembly,  they  shall  expel  him  from 
his  judgment  seat,  and  he  shall  not  return,  and  he  shall  no  more 
take  his  seat  with  the  judges  in  a  case. 

This  particular  law  finds  no  exact  parallel  in  Hebrew  legislation, 
though  bribery  and  unfairness  in  legal  proceedings  are  constantly  con- 
demned throughout  the  historical  and  prophetical  books.  Indeed,  the 
frequency  with  which  bribery  and  perversions  of  justice  are  mentioned 
prove  very  clearly  that  rulers  and  those  in  power  were  much  addicted  to 
corrupt  practices.  (See  Ex.  23  :  6-8 ;  1  Sam.  8:3;  12  :  3 ;  Isa.  1 :  23  ; 
Ezek.  22  :  12 ;   Amos  5  :  12.) 

6 

If  a  man  steal  the  property  of  a  temple,  or  [royal]  palace,  that 
man  shall  be  put  to  death,  and  so,  too,  he  who  may  receive  from  his 
hand  stolen  goods  shall  be  put  to  death. 

We  have  no  record  in  the  Old  Testament  that  the  death  penalty  was 
inflicted  for  mere  theft,  unless  in  such  cases  as  that  of  Achan  (Josh.  7  :  25), 
where  the  theft  was  really  from  God  ;  for  the  things  taken  by  Achan  were 
"devoted"  to  God.  Passages  like  Gen.  31:32,  and  44:9,  leave  us  to 
infer  that  in  patriarchal  times  those  guilty  of  stealing  sacred  things  were 
subjected  to  the  death  penalty.  The  purloining  of  Laban's  gods 
might  be  regarded  in  the  same  light  as  the  robbing  of  a  temple ;  and  as 
Joseph  acted  in  the  capacity  of  vice-general,  the  stealing  of  his  cup  was 
a  crime  against  the  palace  or  Egyptian  court,  therefore  worthy  of  the 
severest  penalty.  See  Ex.  22 :  2,  where  a  thief  is  killed  at  night  while 
breaking  into  a  house. 


If  a  man  buy  silver,  gold,  slave,  male  or  female,  ox,  sheep,  ass, 
or  anything  whatsoever  from  the  son  or  slave  of  any  person,  with- 


Chap.  XIV.]  THE  CODE  OF  HAMMURABI  391 

out  witness  or  contract,  or  receive  the  same  on  deposit,  he  is 
regarded  as  a  thief,  and  shall  be  put  to  death. 

The  object  of  this  law  is  evident,  namely,  to  prevent  underhanded 
buying  and  selling  by  or  from  irresponsible  children  and  faithless  slaves 
or  those  unaccustomed  to  business.  Attention  may  be  called  to  the 
business-like  proceedings  in  the  case  of  Boaz  and  Ruth.  (See  Ruth  4  :  2  ff.) 
Boaz  appears  at  the  gate,  the  usual  place  for  transacting  legal  business^ 
where  he  meets  the  other  kinsman  of  Ruth ;  then,  before  the  elders  of  the 
city  of  Bethlehem,  a  contract  is  drawn  up  before  witnesses. 

It  seems  clear,  from  the  above  section,  that  slaves  were  competent  to 
act  as  agents  for  their  masters,  but  only  in  the  presence  of  witnesses  and 
when  a  contract  was  duly  drawn  up. 


8 

If  a  man  steal  an  ox,  or  sheep,  or  ass,  or  pig,  or  boat,  from  a 
temple  or  palace,  he  shall  pay  thirty-fold ;  if  it  be  from  a  freeman, 
he  shall  pay  tenfold.  If  the  thief  has  nothing  with  which  to  pay, 
he  shall  be  put  to  death. 

Notice  the  grades  of  puni^ment.  Objects  contributed  for  the  sup-^ 
port  of  a  temple~w6re'Ma  as  very  sacred,  and  as  the  king  was  God's 
immediate  representative  here  on  earth,  his  property,  too,  was  regarded 
as  sacred.  There  was  a  wide  range  in  the  Babylonian  laws  of  restitution 
in  cases  of  theft,  anywhere  from  thirty  to  two.  (See  124  and  126.)  Ac- 
cording to  Hebrew  laws  and  customs  it  ranged  from  seven  (Prov.  6:1) 
to  two  (Ex.  22  :  1).     The  Hebrew  law  reads  thus  : 

If  a  man  shall  steal  an  ox  or  a  sheep,  and  kill  it,  or  sell  it,  he  shall 
pay  five  oxen  for  an  ox,  and  four  sheep  for  a  sheep.  ...  If  the 
theft  be  found  in  his  hand  alive,  whether  it  be  ox,  or  ass,  or  sheep, 
he  shall  pay  double.     (Ex.  22  :  1  and  4.) 

In  the  time  of  David,  a  stolen  lamb  was  to  be  restored  fourfold.  (2 
Sam.  12 :  6.)  This  fourfold  restoration  was  in  vogue  in  the  time  of  our 
Savior  (Luke  19 :  8),  and  prevails  to  this  day  among  the  Bedouin  of  the 
desert. 

9 

If  a  man  who  has  lost  any  article  find  it  in  the  hands  of  another ; 
and  the  man  with  whom  the  lost  article  is  found  say,  "A  merchant 
sold  it  to  me  in  the  presence  of  witnesses,"  and  the  owner  of  the 
article  say,  "I  can  produce  witnesses  who  know  my  lost  property," 
then  shall  the  buyer  bring  the  merchant  who  sold  it  to  him,  and  the 
witness  before  whom  it  was  purchased,  and  the  owner  shall  bring 
witnesses  who  know  the  lost  property.  The  judge  shall  examine 
their  evidence  before  God  [i.e.,  in  open  court],  and  both  of  the  wit- 
nesses before  whom  the  price  was  paid,  and  of  the  witnesses  who 
identify  the  lost  article.  [If]  the  merchant  is  then  proven  to  be  a 
thief,  he  shall  be  put  to  death.     The  owner  of  the  lost  article 


392  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

receives  his  property,  the  buyer  shall  recover  the  money  he  paid 
for  the  same  from  the  estate  of  the  seller. 


10 

If  the  buyer  can  not  produce  the  one  who  sold  it  and  the  wit- 
nesses before  whom  he  bought  the  article,  but  its  owner  bring 
witnesses  who  identify  it,  then  the  buyer  is  put  to  death  as  the 
thief,  and  the  owner  of  the  lost  article  shall  take  back  his  property. 

11 

If  the  owner  [claimant,  H.]  of  the  lost  article  do  not  produce 
witnesses  to  identify  said  article,  he  is  malevolent  and  guilty  of 
fraud ;  he  shall  be  put  to  death. 

See  remarks  under  Section  3. 

12 

If  the  seller  have  died,  the  buyer  shall  recover  from  the  estate 
of  the  seller  fivefold  damages. 

The  Hebrews,  too,  had  their  laws  concerning  lost  property  and  articles 
found.  They  are  fully  stated  in  both  Exodus  and  Leviticus.  This  is 
from  the  Book  of  the  Covenant : 

For  every  matter  of  trespass  [violation  of  property  rights,  espe- 
cially theft],  whether  it  be  for  ox,  for  ass,  for  sheep,  for  raiment,  or 
for  any  manner  of  lost  thing,  whereof  one  saith.  This  is  it ;  the 
cause  of  both  parties  shall  come  before  God  [to  open  trial],  he 
whom  God  [the  judges]  condemns  shall  pay  double  unto  his 
neighbor.     (Ex.  22  :  9.) 

We  further  read  in  Lev.  6  :  2-5  : 

If  any  one  sin,  and  commit  a  trespass  against  the  L«RB,  and 
deal  falsely  with  his  neighbor  in  a  matter  of  deposit,  or  of  bar- 
gain [pledge],  or  of  robbery,  or  have  oppressed  his  neighbor;  or 
have  found  that  which  was  lost,  and  deal  falsely  therein,  and 
swear  to  a  lie ;  in  any  of  all  these  that  a  man  doeth,  sinning 
therein :  then  it  shall  be,  if  he  hath  sinned,  and  is  guilty, 
that  he  shall  restore  that  which  he  took  by  robbery,  or  the 
thing  which  he  hath  gotten  by  oppression,  or  the  deposit 
which  was  committed  to  him,  or  the  lost  thing  which  he  hath  found, 
or  anything  about  which  he  hath  sworn  falsely ;  he  shall  even  re- 
store it  in  full,  and  shall  add  the  fifth  part  more  thereto :   unto 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  393 

him  to  whom  It  appertaineth  shall  he  give  it,  in  the  day  of  his 
being  found  guilty. 

Indeed,  the  Hebrew^daw  went  still  farther,  for  it  was  directly  com- 
manded that  those  finding  strayed  animals,  or  lost  articles  of  any  kind, 
should  make  diligent  effort  to  find  the  owner  so  as  to  restore  to  him  that 
which  had  been  lost. 

13 

If  the  witnesses  of  that  man  be  not  at  hand,  the  judge  shall  put 
off  the  case  for  six  months;  and  if  then  he  do  not  produce  his 
witnesses  within  these  six  months,  that  man  is  malevolent,  he 
himself  shall  bear  the  penalty  in  that  case. 

The  reader  will  at  once  perceive  that  the  laws  of  Hammurabi  which  \ 
pertained  to  theft  were  much  harsher  than  those  of  the  Hebrews.     This^/ 
is  natural,  for  they  point  to  a  more  developed  commercial  and  business 
system  than  that  which  obtained  in  Israel.     Not  only  was  theft  of  a  cer- 
tain kind  punishable  with  death,  but  the  receiver  of  stolen  goods  was  sub- 
ject to  the  same  penalty  as  the  thief  himself. 

14 

If  a  man  steal  the  minor  son  of  a  freeman,  he  shall  be  put  to 
death. 

Kidnaping  was  a  capital  offense  in  Israel  too.     The  law  reads : 

And  he  that  stealeth  a  man  and  selleth  him,  or  if  he  be  found 
in  his  hand,  he  shall  surely  be  put  to  death.     (Ex.  21 :  16.) 

In  Deuteronomy  the  law  seems  to  be  confined  to  the  stealing  of  Israel- 
itish  children,  as  it  was  in  Babylonia  to  freemen,  which  goes  to  show  that 
the  Hebrews  made  a  distinction  between  kidnaping  from  Israelites  and 
foreigners.     We  read : 

If  a  man  be  found  stealing  any  of  his  brethren  of  the  children 
of  Israel,  and  he  deal  with  him  as  a  slave,  or  sell  him,  then  that 
thief  shall  die.     (Deut.  24 :  7.) 

15 

If  any  man  take  a  male  or  female  slave  of  the  [royal]  palace,  or 
the  male  or  female  slave  of  a  freeman  outside  the  gates  of  the  city, 
he  shall  be  put  to  death. 

16 

It  a  man  conceal  in  his  house  a  male  or  female  slave,  a  fugitive 
from  the  palace,  or  from  a  freeman,  and  do  not  produce  the  same 
at  the  order  of  the  officer,  the  master  of  that  house  shall  be  put  to 
death. 


394  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

The  Babylonian  law  made  it  exceedingly  difficult  to  harbor  or  aid  in 
any  way  runaway  slaves.  It  will  be  noticed  that  the  extreme  penalty 
of  the  law  was  inflicted  in  all  cases,  regardless  of  the  fact  as  to  whether  the 
slave  was  that  of  the  king  or  of  some  ordinary  citizen.  Such  laws  made 
the  condition  of  thos6  in  slavery  extremely  hard.  In  Israel,  on  the  other 
hand,  the  provisions  of  the  laws  relating  to  fugitive  slaves  were  very  mild. 
To  recover  or  capture  a  Hebrew  slave  was  a  difficult  task ;  the  owner  of 
such  a  slave  would  therefore,  in  the  nature  of  things,  endeavor  to  make 
his  lot  tolerable.     Here  is  the  Deuteronomic  law : 

Thou  shalt  not  deliver  unto  his  master  a  servant  which  is  escaped 
from  his  master  unto  thee ;  he  shall  dwell  with  thee,  in  the  midst 
of  thee,  in  the  place  which  he  shall  choose,  within  one  of  thy  gates, 
where  it  liketh  him  best :  thou  shalt  not  oppress  him.  (Deut. 
23 :  15,  16.) 

It  may  be  observed  that  the  phrase  "in  the  midst  of  thee,"  signifies 
anywhere  in  Israel.  Many  think  that  this  law  was  enacted  for  foreigners 
or  non-Israelites,  for  they  argue  that,  according  to  Lev.  25 :  39,  a  Hebrew 
is  not  to  be  made  a  bond-servant,  but,  at  the  most,  a  hired  man  or  day 
laborer  for  a  limited  time.     We  read : 

Of  the  nations  that  are  round  about  you,  of  them  shall  ye  buy 
bondmen  and  bondmaids.     (Lev.  25  :  14.) 


17 

If  a  man  jfind  a  fugitive  slave,  male  or  female,  in  the  open  coun- 
try, and  brings  the  same  to  the  owner,  the  owner  of  said  slave  shall 
pay  that  man  two  shekels  of  silver. 


18 

If  that  slave  refuse  to  give  the  name  of  his  master,  he  shall  be 
brought  to  the  palace ;  an  inquiry  shall  be  made  into  his  past, 
and  he  shall  be  restored  to  his  owner. 

Here  again  we  see  another  proof  of  the  law  favoring  the  rich  rather 
than  the  poor,  the  master  rather  than  the  slave ;  the  reward  offered  for 
the  restoration  of  a  fugitive  slave  could  not  but  have  served  as  an  induce- 
ment for  the  capture  of  those  slaves  who  had  deserted  their  posts.  It  is 
probable  that  Israel,  too,  had  similar  laws.  See  the  account  of  Shimei 
and  his  two  fugitive  slaves,  1  Kings  2 :  39  ff . 


19 

If  he  forcibly  detain  that  slave  in  his  house,  and  that  slave  be 
caught  later  in  his  house,  then  that  man  shall  be  put  to  death. 

This  is  not  a  case  of  harboring  a  slave,  but  rather  one  of  theft,  or  kid- 
naping. As  in  the  case-  of  concealing  stolen  goods,  the  penalty  was 
death.     (See  Section  6). 


Chap.  XIV.J  THE   CODE   OF  HAMMURABI  395 


20 

If  a  slave  escape  from  the  one  who  has  captured  him,  that  man 
shall  swear,  by  the  name  of  God  to  the  owner  of  the  slave,  then  he 
shall  be  acquitted  of  all  blame. 

21 

If  a  man  make  a  breach  into  a  house,  one  shall  kill  him  in  front 
of  the  breach,  and  bury  him  in  it. 

This  passage  is  not  quite  clear,  "To  make  a  breach,"  corresponds,  no 
doubt,  to  our  phrase,  "to  break  into."  "To  kill  in  front  of  the  breach," 
probably  means  to  kill  on  the  spot,  without  giving  the  thief  any  chance 
whatever  to  escape ;  i.e.,  without  ceremony  or  trial.  To  bury  the  culprit 
in  a  hole  in  front  of  the  breach  seems  to  point  to  a  custom  of  burying 
burglars,  wherever  killed.  Such  a  custom  was  known  to  the  Germans 
during  the  Middle  Ages.  Some  have  suggested  that  the  belief  was 
indulged  in  that  the  dead  man's  spirit  would  protect  that  house  from 
further  burglaries. 

In  Israel,  too,  the  penalty  for  housebreaking  "before  the  sun  be  risen" 
—  i.e.,  at  night  —  was  death.  This  is  perfectly  natural,  for  burglars  have 
all  the  advantage  in  the  darkness  of  the  night ;  their  apprehension  is  very 
difficult,  and  their  identification  always  all  but  impossible.  Moreover,  a 
burglar  in  case  of  an  effort  to  capture  him,  seldom  hesitates  to  resort  to 
extreme  measures.     The  Hebrew  law  reads  thus : 

If  the  thief  be  found  breaking  in,  and  be  smitten  that  he  die, 
there  shall  be  no  bloodguiltiness  [no  charge  of  murder  against  the 
one  that  killed  him]  for  him.  If  the  sun  be  risen  upon  him,  there 
shall  be  no  bloodguiltiness  for  him.     (Ex.  22  :  2,  3.) 

22 

If  a  man  carried  on  highway  robbery  and  be  captured,  he  shall 
be  put  to  death. 

2a 

If  the  highwayman  be  not  captured,  he  who  has  been  robbed 
shall  declare  before  God  [under  oath  in  open  court],  the  amount 
lost ;  then  the  place  and  official  in  whose  territory  and  district  the 
robbery  took  place  shall  compensate  him  for  that  which  he  lost. 

24 

If  it  be  a  life,  the  place  and  official  shall  pay  one  mina  of  silver 
to  his  people. 

This  is  rather  obscure.  Winckler  renders:  "If  people  are  stolen, 
then  shall  the  community  and  official  pay  one  silver  mina  to  the  relatives." 
Have  we  reference  here  to  murder  or  kidnaping  ?     Cook  evidently  regards 


\ 


396  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

the  first  clause  as  having  reference  to  murder.  He  says:  "The  code 
placed  upon  the  city  and  the  governor  the  responsibility  for  brigandage 
carried  on  within  its  limits.  .  .  .  And  if  it  was  a  life,  the  city  and  the 
governor  were  required  to  pay  one  mina  of  silver  to  the  people  of  the 
murdered  man."  The  law  has  Semitic  analogies,  and,  as  Dareste  has 
pointed  out,  recurs  not  infrequently  in  ancient  codes.  "In  Arabia  the 
responsibility  for  homicide,  where  the  murderer  was  unknown,  was  cast, 
in  the  first  instance,  upon  the  nearest  community;  but  under  Islam, 
blood  money  in  these  circumstances,  was  paid  by  the  state." 

The  Hebrew  law  in  case  the  murderer  were  not  known  is  stated  at 
length  in  Deut.  21 :  1-9,  to  which  the  reader  is  referred,  as  our  space  for- 
bids its  insertion  here. 

25 

If  a  fire  break  out  in  a  man's  house,  and  any  one  who  goes  to 
put  out  the  fire  shall  lift  up  his  eyes  towards  the  owner's  property 
and  take  any  property  [furniture]  of  the  owner  of  the  house,  he 
shall  be  cast  into  that  same  fire. 

It  is  clear,  from  the  wording  of  this  law,  that  the  owner  of  the  house  on 
fire  had  the  right  to  take  the  law  into  his  own  hands,  and  punish  the  thief 
on  the  spot,  just  as  in  the  case  of  housebreaking  at  night  mentioned  in 
Section  21.  We  find  no  parallel  to  this  in  the  Mosaic  Code,  nor  any  refer- 
ence to  such  practice  anywhere  in  the  Old  Testament.  It  will  be  ad- 
mitted, however,  that  a  man  mean  enough  to  steal  under  such  circum- 
stances deserved  summary  punishment. 

26 

If  an  officer  or  man  [common  soldier]  who  has  been  ordered  to 
proceed  on  the  king's  business,  go  not,  but  hire  a  substitute  whom 
he  sends  in  his  place,  that  officer  or  man  shall  be  put  to  death,  his 
substitute  shall  take  possession  of  his  house. 

T 

The  contrast  between  this  severe  law  and  that  of  Deuteronomy  in 
regard  to  soldiers  and  army  officers  is  marked.     The  Hebrew  law  reads : 

When  a  man  taketh  a  new  wife,  he  shall  not  go  out  in  the  host, 
neither  shall  he  be  charged  with  any  business :  he  shall  be  free  at 
home  one  year.     (Deut.  24  :  5.     See  also  20  :  5-9.) 

It  is  not  quite  clear  what  is  meant  by  the  terms  o^cer  and  man  in 
this  section,  nor  yet  on  what  business  they  were  dispatched  by  the  king. 
Some  regard  the  reference  to  soldiers  and  officers  in  time  of  war,  while 
others  maintain  that  the  cultivation  of  public  lands  is  the  subject  in 
question. 

We  now  come  to  a  number  of  laws  (27-41)  having  reference  to  what 
may  be  called  crown-lands,  or  land  held  in  fee  by  the  State.  We  know 
that  Israel,  too,  had  such  lands  at  one  time  or  another  under  the  monarchy. 
It  is  to  this  custom  that  Samuel  refers  when  he  says  to  the  delegation  which 
waited  upon  him  to  demand  a  king : 

And  he  will  take  your  fields,  and  your  vineyards,  and  your 
olive-yards,  even  the  best  of  them,  and  give  to  his  officers  and 
his  servants.      (1  Sam.  8 :  14.) 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  397 

The  words  of  Jezebel  concerning  Naboth's  vineyard  prove  clearly 
that  the  prophecy  of  Samuel  was  not  a  mere  threat.  (1  Kings  21 :  7 ; 
Ez.  46 :  16-18.) 

27 

If  an  officer  or  a  man  be  captured  in  the  garrison  of  the  king, 
and  subsequently  his  field  and  garden  have  been  given  to  another, 
and  this  one  take  possession ;  if  he  [the  former  owner]  return  and 
reach  his  place,  his  field  and  garden  shall  be  restored  to  him,  and 
he  shall  take  it  again. 

28 

If  an  officer  or  a  man  be  captured  in  the  garrison  of  the  king,  if 
his  son  be  able  to  take  charge  of  his  business,  the  field  and  the 
garden  shall  be  given  to  him,  and  he  shall  take  his  father's  field. 

29 

If  his  son  be  a  minor,  not  able  to  take  charge  of  the  business,  the 
third  of  the  field  and  garden  shall  be  given  to  his  mother,  and  she 
shall  bring  him  up. 

30 

If  an  officer  or  a  man  neglect  his  field,  garden,  or  house,  instead 
of  taking  care  of  them ;  if  another  take  his  field  and  garden  and 
house  and  care  for  them  three  years;  if  the  owner  return  and 
claim  his  field  and  garden  and  house,  they  shall  not  be  given  to 
him,  but  he  who  has  taken  them  and  cared  for  them  shall  continue 
to  take  care  of  them. 

31 

If  he  abandoned  them  one  year,  and  return,  then  the  field,  garden, 
and  house  shall  be  given  back  to  him,  and  he  shall  take  them  again. 

32 

If  an  officer  or  a  man  be  captured  on  an  errand  of  the  king,  and  a 
merchant  ransom  him,  and  bring  him  back  to  his  locality ;  if  he 
have  in  his  house  means  for  his  ransom,  so  shall  he  ransom  himself ; 
if  there  be  no  means  in  his  house  for  his  ransom,  so  shall  he  be 
ransomed  by  the  temple  of  his  community  ;  if  in  the  temple  of  his 
community  there  be  no  means  to  ransom  him,  then  the  palace  [the 
king]  shall  ransom  him.  His  field,  garden,  and  house  shall  not  be 
given  for  his  ransom. 


398  ANCIENT  AND  PRIMITIVE   LAWS  AND   CODES  [Part  III. 


33 

If  either  a  governor  or  magistrate  have  taken  to  himself  the  men 
of  the  levy,  or  accepted,  and  sent  on  the  king's  errand,  hired  sub- 
stitute, that  governor  or  magistrate  shall  be  put  to  death. 

Winckler  maintains  that  it  is  an  impossibility  to  get  at  the  exact 
meaning  of  the  words  translated  "governor  and  magistrate"  in  this  or 
the  following  section.  He  thinks,  however,  that  the  reference  must  be  to 
military  men  of  some  kind.     We  have  followed  Harper. 


34 

If  a  governor  or  a  magistrate  take  the  property  of  an  officer, 
plunder  an  officer,  hire  out  an  officer  as  slave,  or  deliver  an  officer 
in  a  lawsuit  to  a  tyrant,  take  away  from  an  officer  a  gift  given  him 
by  the  king;   that  governor  or  magistrate  shall  be  put  to  death. 

Harper's  rendering  is  nearly  the  same  as  the  above ;  but  Johns  gives 
the  following  translation:  "If  either  a  governor  or  magistrate  has  taken 
to  himself  the  property  of  a  ganger,  has  plundered  a  ganger,  has  given  a 
gauger  to  hire,  has  stolen  from  a  ganger  any  judgment  by  high-handed- 
ness, has  taken  to  himself  the  gift  the  king  has  given  the  gauger;  that 
governor  or  magistrate  shall  be  put  to  death." 


35 

If  any  one  buy  the  cattle  or  sheep  from  an  officer,  which  were 
intrusted  to  him  by  the  king,  he  [the  buyer]  shall  forfeit  his  money. 

The  property  above  mentioned  belonged  evidently  to  the  royal  flocks, 
intrusted  to  the  care  of  government  officials.  The  Hebrew  kings,  too, 
had  their  royal  domains,  consisting  of  vineyards,  olive-yards,  flocks,  herds, 
etc.     (See  1  Chron.  27;  25-31.) 


36 

The  field,  garden,  or  house  of  an  officer,  sub-officer  [constable], 
or  a  tributary  [tax-gatherer,  H.],  may  not  be  sold  for  money. 


37 

If  a  man  buy  the  field,  garden,  or  house  of  an  officer,  sub-officer 
or  tributary,  the  sale  is  void  [the  tablet  recording  the  sale  shall  be 
broken],  and  he  forfeits  his  money.  The  field,  house,  or  garden 
shall  be  given  back  to  the  owner. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  399 


38 

An  officer,  sub-officer,  or  tributary  may  not  transfer  in  writing 
his  field,  garden,  or  house  to  his  wife  or  daughter,  nor  may  he 
assign  them  for  debt. 

The  reference  in  this  section  is  not  to  property  inherited,  or  even  ac- 
quired by  purchase,  but  most  probably  to  lands  and  houses  intrusted  to 
a  man  while  filling  some  government  or  municipal  office  ;  or,  as  Professor 
Harper  suggests,  property  "which  is  his  by  virtue  of  his  office."  If  this 
theory  be  correct,  we  may  infer  that  a  son  might  also  inherit  certain  offices. 


39 

He  may,  however,  transfer  in  writing  a  field,  garden,  or  house, 
which  he  has  acquired  by  purchase,  and  possesses,  to  his  wife  or 
daughter,  or  may  assign  for  debt. 

Daughters,  according  to  Hebrew  law,  too,  could,  under  certain  circum- 
stances, inherit  the  property  of  their  father.  See  Num.  27 : 1-11,  where 
the  case  of  Zelophehad's  daughters  is  discussed. 


40 

He  may  sell  field,  garden,  and  house  to  a  royal  agent  [tamkar], 
or  any  other  State  official;  the  buyer  holding  field,  garden,  and 
house  for  its  usufruct. 

This  section  is  obscure.  It  is  probable  that  the  law  refers  to  one 
public  official  transferring  public  properties  or  benefices  to  another  agent 
of  the  State. 

Harper's  and  Johns's  translations  are  essentially  different.  We  re- 
produce that  given  by  Harper  :  "A  woman,  merchant,  or  other  property- 
holder  may  sell  field,  garden,  or  house.  The  purchaser  shall  conduct 
the  business  of  the  field,  garden,  or  house  which  he  has  purchased." 

Johns  has  votary  —  i.e.,  a  temple  prostitute  —  for  woman,  and  foreign- 
sojourner  for  property-holder;    otherwise  he  agrees  with  Harper. 


41 

If  any  one  fence  in  the  field,  garden,  or  house  of  an  officer,  sub- 
officer,  or  tributary,  and  furnish  the  fencing  material  therefor, 
when  the  officer,  sub-officer,  or  tributary  return  to  the  field,  garden, 
and  house,  the  fencing  material  becomes  his  property. 

The  translations  of  both  Johns  and  Harper  differ  widely  from  the 
above,  though  agreeing  very  closely  with  one  another.  Johns  renders 
thus:  "If  a  man  has  bartered  for  a  field,  garden,  or  house  of  a  gauger, 
constable,  or  tributary,  and  has  given  exchanges,  the  gauger,  constable, 
or  tributary  shall  return  to  his  field,  garden,  or  house,  and  shall  keep  the 
exchanges  given  him." 


V 


400  ANCIENT   AND   PRIMITIVE   LAWS   AND   CODES  [Part  III. 

42 

If  a  man  rent  a  field  for  tilling  and  raise  no  crops ;  then  he  shall 
be  called  to  account  for  not  having  cultivated  the  field,  and  [if 
convicted]  he  shall  dehver  grain  to  the  owner  of  the  field,  in  pro- 
portion to  the  yield  of  the  adjacent  fields. 

This  law  is  eminently  just,  for  instead  of  fining  the  negleeter  any  fixed 
sum,  he  simply  has  to  pay  the  amount  for  which  he  is  justly  responsible . 
That  is,  the  fine  is  based  upon  the  yield  in  near-by  fields  that  same  year. 
This  law  finds  an  exact  parallel  in  Hebrew  legislation,  though  the  follow- 
ing more  than  covers  it : 

Thou  shalt  not  oppress  an  hired  servant  that  is  poor  and  needy ; 
whether  he  be  of  thy  brethren  or  of  thy  strangers  that  are  within 
thy  gates.     (Deut.  24 :  14.) 

43 

If  he  do  not  till  the  field,  but  neglect  it,  he  must  give  grain  to  the 
owner  of  the  field  to  the  same  amount  that  his  neighbor  produced ; 
and  the  field  which  he  has  not  tilled,  he  must  plow  and  harrow 
and  give  back  to  the  owner  of  the  field. 

44 

If  a  man  rent  for  three  years  a  piece  of  waste  land  to  make  it 
productive,  but  is  too  lazy  to  till  it,  so  as  to  make  it  arable,  in  the 
fourth  year  he  must  plow  it,  harrow  it,  and  till  it,  and  give  it  back 
to  the  owner,  and  for  each  year  he  must  measure  out  ten  Gur  of 
grain  for  each  ten  Gan. 

A  Gan  was  about  6f  acres,  and  a  Gur  a  little  more  than  eight  bushels. 

45 

If  a  man  let  his  field  to  another  for  a  fixed  rent,  and  has  received 
the  rent  for  the  field,  but  storms  come  and  destroy  the  crops,  the 
loss  falls  upon  the  renter. 

This  law  is  eminently  unjust,  and  proves  clearly  that  the  rich  man  had 
advantage  over  the  poor,  and  yet  the  same  custom  prevails  to-day  in  our 
own  land. 

46 

But  if  he  have  not  received  a  fixed  rent  for  his  field,  but  has  let 
it  out  for  one-half  or  one-third  [of  the  crop],  so  the  grain  on  the 
field  shall  be  divided  proportionately  between  the  renter  and  the 
owner  of  the  field. 


Chap.  XIV.l  THE   CODE   OF  HAMMURABI  401 


47 

If  the  renter,  because  in  the  first  year  he  did  not  gain  suste- 
nance, has  given  the  field  into  the  charge  of  another,  the  owner  shall 
not  object;  the  field  has  been  cultivated,  and  he  shall  take  his 
share  of  the  grain  according  to  the  contract. 

This  section  is  not  free  from  obscurity.  Johns  renders  the  first  part, 
"If  the  cultivator,  because  in  the  former  year  he  did  not  set  up  his  dwell- 
ing;" and  Scheil,  "because  he  did  not  go  to  his  farm." 

48 

If  any  owe  a  debt  on  which  he  pays  interest,  and  a  storm  dev- 
astate his  field  and  destroy  the  grain,  or,  owing  to  a  scarcity  of 
water,  the  grain  have  not  grown  in  the  field ;  in  that  year  he  need 
not  give  any  grain  to  the  creditor;  he  shall  moisten  his  contract 
tablet  in  water,  and  need  pay  no  interest  this  year. 

To  moisten  the  tablet  in  water  was  symbolical.  We  learn  from  Sec- 
tion 37  that  tablets  were  also  destroyed. 

If  a  man  have  taken  mpney  from  a  merchant,  and  have  given 
[as  security]  the  merchaiA'  an  arable  field,  to  be  planted  in  grain  or 
sesame,  and  have  said  to  him.  Plant  grain  or  sesame  in  the  field 
and  take  the  crop ;  if  the  cultivator  produce  grain  or  sesame  in 
the  field,  then  at  the  harvest  the  grain  or  sesame  that  the  field 
has  produced  shall  be  the  property  of  the  owner  of  the  field,  and 
he  shall  pay  grain  for  the  money  he  received  from  the  merchant, 
and  for  the  interest  and  for  the  support  of  the  renter. 

We  know,  from  other  inscriptions,  that  interest,  amounting  to  what 
would  now  be  regarded  as  usury,  was  charged  in  ancient  Babylonia.  The 
rate,  as  a  rule,  was  llf  or  13f  per  cent.,  though  some  tablets  record  inter- 
est at  20  per  cent.  Interest  was  often  paid  in  money,  but  quite  commonly 
in  grain,  fruit,  or  vegetables.  T^e  contracting  of  debt  was  regarded  by 
the  Hebrew  law  as  a  misfortune ;  consequently  those  having  anything  to 
lend  were  exported  to  be  generous.     We  read : 

If  thou  lend  money  to  any  of  my  people  with  thee  that  is  poor, 
thou  shalt  not  be  to  him  as  a  creditor ;  neither  shall  ye  lay  upon 
him  usury.     (Ex.  22  :  25.) 

It  must  be  noticed,  however,  that  the  Hebrews  made  a  distinction 
between  a  native  Israelite  and  a  foreigner,  in  money-lending  matters ; 
for  we  further  read  : 

Thou  shalt  not^  lend  on  usury  to  thy  brother,  usury  of  money, 
usury  of  victuals,  usury  of  anything  that  is  lent  on  usury ;  unto  a 


402  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Pabt  III. 

foreigner  thou  mayest  lend  upon  usury,  but  unto  thy  brother  thou 
shalt  not  lend  on  usury.     (Deut.  23  :  19,  20.) 

The  reader  must  bear  in  mind  that  the  word  usury  is  employed  here, 
as  everywhere  in  the  Old  Testament,  as  the  exact  synonym  of  interest, 
and  therefore  should  never  be  regarded  as  an  excessive  rate  of  interest. 
Driver  observes,  very  justly,  that  Hebrew  legislation,  in  condemning 
interest  on  anything  lent,  agrees  perfectly  with  the  thinkers  of  Greece 
and  Rome,  as  well  as  those  of  the  early  Christian  Church.  The  fact, 
however,  is,  that  it  was  very  uncommon  in  ancient  times  to  borrow  money 
simply  for  the  sake  of  speculation,  or  mere  investment  in  some  business 
project.  A  clear-cut  distinction  should  be  made  between  the  ancient 
charitable  loan  and  the  modern  commercial  loan.  Our  Savior,  though 
acquainted  with  purely  commercial  loans,  did  not  speak  in  unmeasured 
terms  of  condemnation.  (See  Matt.  25  :  27  ff.)  Nor  must  we  think  that 
it  was  ever  a  general  practice  among  the  Jews  to  receive  no  interest, 
accept  no  pledges,  or  demand  no  security.  Indeed,  we  know  that  debtors 
were  sold  (for  a  limited  period)  as  slaves.  (See  2  Kings  4:1;  Neh.  5  :  5, 
6 ;  Isa.  50  :  1.)  The  seventh  vear,  the  so-called  year  of  release,  is  known 
to  us  all.     (See  Deut.  15  :  1-6 ;  and  Ex.  21 :  2.) 


50 

If  the  field  of  grain  or  the  field  of  sesame  were  already  planted 
when  he  gave  it  [as  security],  the  grain  or  sesame  in  that  field 
shall  belong  to  the  owner  of  that  field,  and  he  shall  return  the  money 
with  interest  to  the  merchant. 


51 

If  he  have  no  money  to  pay  back,  he  shall  give  the  merchant 
grain  or  sesame  according  to  the  current  price  for  the  money,  and 
also  interest  according  to  the  royal  tariff  [i.e.,  the  sum  legally  fixed 
by  the  authorities]. 

52 

If  the  renter  have  not  planted  grain  or  sesame  in  the  field,  his 
[the  debtor's]  contract  is  not  annulled. 

Harper   has,  "do  not   secure  a  crop,"  instead  of  "have  not  planted." 
The  above   laws  seem    exceedingly  fair.     Poor  crops  resulting  from 

natural  causes  excused  the  poor  man  or  renter  from  part  of  the  rental ; 

but  carelessness  or  indolence  were  treated  with  no  leniency. 

The  next  four  laws  concern  dams,  dykes,  or  canals.  In  the  very  nature 
of  the  case,  the  hills  of  Palestine  exclude  the  necessity  for  legislation  suit- 
able only  to  level  or  low  lands,  such  as  Mesopotamia.  Babylonia  was 
almost  as  dependent  upon  its  canals  as  is  Holland  to-day.  They  needed 
constant  care  and  repairing.  Those  living  alongside  of  them  were  held 
responsible  for  any  damage  which  might  result  from  a  breach.  The 
severity  of  the  law,  as  we  shall  see,  for  neglecting  them,  is  a  certain  proof 
of  the  damage  caused  by  inundations. 


Chap.  XIV.J  THE  CODE  OF  HAMMURABI  403 

53 

If  any  one  neglect  to  keep  his  dyke  in  proper  condition  and  do 

not  strengthen  his  dyke,  and  if  a  breach  take  place,  and  the  meadow- 

'and  be  inundated    by  the  water,  the    man  in  whose  dyke  the 

reach  has  taken  place,  shall  pay  l%ck  for  the  grain  which  was 

viiereby  destroyed. 

54 

If  he  be  unable  to  replace  the  grain,  he  shall  be  sold,  and  also  his 
property  for  money,  and  the  farmers  whose  grain  the  waters 
destroyed  shall  share  the  proceeds. 

55 

If  a  man  have  opened  his  trenches  for  irrigation  in  such  a  careless 
way  as  to  overflow  his  neighbor's  field,  he  shall  pay  his  neighbor  in 
t'T-ain  [the  amount  being  based  on  the  adjoining  fields]. 

56 

If  a  man  let  in  the  water  and  the  water  carry  off  the  crop  of  the 

I  joining  field,  he  shall  measure  ten  GuR  of  grain  for  every  ten 
Gan  of  land. 

As  already  said,  the  Hebrews  had  no  legislation  concerning  canals  or 
dykes.  They  did,  however,  recognize  damages  arising  from  neglect. 
Thus  when  a  cistern  or  pit  was  not  properly  covered,  the  owner  of  the 
same  was  to  make  good  the  loss  arising  from  the  neglect.  (Ex.  21 :  33.) 
So  also  in  the  case  of  fire.     The  law  reads : 

If  fire  break  out,  and  catch  in  thorns,  so  that  the  shocks  of  corn, 
or  the  standing  corn  in  the  field,  be  consumed ;  he  that  kindled 
the  fire  shall  surely  make  restitution.  (Ex.  22  :  6.) 

57 

II  a  shepherd,  without  the  consent  or  permission  of  the  owner  of 
a  field,  have  pastured  his  sheep  upon  the  growing  grain ;  the  owner 
shall  reap  his  field,  and  the  shepherd,  who  without  his  permission 
has  pastured  his  flock  in  the  field,  shall  pay  in  addition  [as  damage] 
tvventy  Gur  of  grain  for  every  ten  Gan. 

The  Hebrew  law  presents  the  following  parallel: 

If  a  man  shall  cause  a  field  or  a  vineyard  to  be  eaten,  and  shall 
let  his  beast  loose,  and  if  it  feed  in  another  man's  field ;  of  the  test 


'404  ANCIENT  AND   PRIMITIVE   LAWS   AND   CODES  [Part  III. 

of  his  own  field  and  of  the  best  of  his  vineyard  shall  he  make  restitu- 
tion.    (Ex.  22 :  5.) 

58 

If  after  the  sheep  have  left  the  meadow,  and  have  been  shut  up  in 
the  common  fold  at  the  city^ate,  the  shepherd  turn  the  sheep  into 
the  field,  to  pasture  the  sheep  on  the  field ;  the  shepherd  shall 
take  the  field  which  he  has  suffered  to  be  grazed,  and  besides  he 
shall  pay  the  owner  sixty  GuR  of  grain  for  every  ten  Gan. 

The  translations  of  both  Johns  and  Harper  differ  a  little  from  the 
above.  That  of  Johns  reads  thus  :  "  If  from  the  time  that  the  sheep  have 
gone  up  from  the  meadow,  and  the  whole  flock  has  passed  through  the 
gate,  the  shepherd  has  laid  his  sheep  on  the  field  and  has  caused  the  shcop 
to  feed  off  the  field,  the  shepherd  who  has  made  them  feed  off  the  field 
one  shall  watch,  and  at  harvest  time  he  shall  measure  out  sixty  Gur  of 
corn  per  Gan  to  the  owner  of  the  field." 

The  reader  will  have  doubtless  observed  the  above  law  is  very  obscure. 
It  probably  refers  to  a  shepherd  who  turned  his  flock  into  the  field  of  his 
neighbor  at  night. 

59 

If  a  man  without  the  knowledge  of  the  owner  of  an  orchard  cut 
down  a  tree  in  that  orchard,  he  shall  pay  one-half  mina  of  silver. 

It  may  be  inferred,  from  Ex.  22 :  5  f.,  that  trees  could  not  be  wantonly 
destroyed.  This  was  unlawful  even  in  the  time  of  war  or  during  a  siege. 
(See  Deut.  20:  19  f.) 

60 

If  a  man  have  given  a  field  to  a  gardener  to  plant  as  an  orchard, 
and  this  one  care  for  it,  he  shall  care  for  the  orchard  four  years ; 
in  the  fifth  year  the  owner  of  the  land  and  the  gardener  shall  share 
equally ;  the  owner  of  the  orchard  shall  take  his  part. 

We  have  the  following  parallel  in  Hebrew  legislation;  though  not 
exact,  it  has  much  in  common : 

And  when  ye  shall  come  into  the  land,  arid  shall  ha^  e  planted 
all  manner  of  trees  for  food,  then  ye  shall  count  the  food  thereof  as 
nncircumcision ;  three  years  shall  they  be  as  uncircumcision  unto 
you ;  it  shall  not  be  eaten.  But  in  the  fourth  year  all  the  fruit 
thereof  shall  be  holy  for  giving  praise  unto  the  Lord.  And  in 
the  fifth  year  ye  shall  eat  of  the  fruit  thereof,  that  it  may  yield  unto 
you  the  increase  thereof.     (Lev.  19  :  23-25.) 

The  general  meaning  of  both  laws  is  clear :  The  first  three  years  pro- 
duced little  or  no  fruit ;  in  the  fourth  year,  according  to  Hebrew  law, 
Jehovah  was  to  receive  a  portion.  (See  Deut.  26:  2.)  From  the  fourth 
year  on,  the  owner  was  to  receive  his  full  portion,  the  tenth  of  course 
excepted. 


CIV.]  THE   CODE   OF  HAMMURABI  405 


61 

If  the  gardener  have  not  planted  the  entire  field,  but  have  left  a 
part  waste,  this  part  shall  be  included  in  his  share. 

That  is,  the  gardener  is  held  responsible  for  his  negligence,  and  the 
amount  which  the  neglected  part  of  the  field  might  have  produced  is 
deducted  from  his  share  when  the  division  is  made. 

62 

If  he  have  not  planted  as  orchard  the  field  which  was  given  him, 
it  be  arable  land  [suitable  for  grain]  the  gardener  shall  pay  the 
owner  produce  for  the  years  he  left  it  uncultivated  proportionate 
to  the  yield  in  the  adjoining  fields,  [and]  he  shall  put  the  field  in  an 
arable  condition  and  give  it  back  to  the  owner  of  the  field. 

63 

If  the  field  be  unreclaimed  land,  he  shall  do  the  ordered  work  on 
the  field,  and  give  it  back  to  the  owner  of  the  field,  and  measure 
out  ten  GuR  of  grain  for  each  ten  Gan,  for  every  year. 

64 

If  a  man  give  his  orchard  to  a  gardener  for  cultivation,  the 
gardener  shall,  as  long  as  he  has  the  orchard,  give  the  owner  two- 
thirds  of  the  produce  of  the  orchard,  and  retain  one-third  for  him- 
self. 

65 

If  the  gardener  do  not  take  proper  care  of  the  orchard,  and  the 
produce  fall  short,  he  shall,  nevertheless,  measure  out  the  yield 
of  the  orchard,  according  as  [things  have  grown  in]  the  neighbor's 
[garden]. 

Here,  as  we  have  already  observed  in  the  introduction,  we  find  that 
five  columns  or  rows  of  the  text  have  been  erased.  This  was  without 
doubt  the  work  of  some  conqueror  in  later  ages,  who  by  inscribing  his 
name,  titles,  etc.,  desired  to  perpetuate  his  own  glory  and  renown.  Why 
the  space  was  not  filled  up,  but  left  blank,  can  only  be  a  matter  of  con- 
jecture ;  nor  can  we  form  any  idea  of  who  the  king  or  general  might  have 
been  who  perpetrated  this  piece  of  vandalism.  What  is  still  worse,  we 
can  form  no  correct  idea  of  the  nature  of  the  laws  thus  erased.  Pere 
Scheil  —  and  most  other  translators  agree  —  thinks  that  no  less  than 
thirty-five  laws  were  erased.  This  accounts  for  our  passing  from  the  sixty- 
fifth  to  the  hundredth  section.  From  Hammurabi  tablets,  found  in  the 
library  of  Assurbanipal,  it  has  been  inferred  that  the  following  might  have 
formed  a  part  of  the  erased  portion.  We  give  them  as  translated  by 
Johns : 


406  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  IIL 

A.  If  a  man  has  taken  money  from  a  merchant,  and  has  given  a 
plantation  of  dates  to  the  merchant,  has  said  to  him,  The  dates 
that  are  in  my  plantation  take  for  thy  money;  that  merchant 
shall  not  agree,  the  dates  that  are  in  the  plantation  the  owner  of  the 
plantation  shall  take,  and  he  shall  answer  to  the  merchant  for  the 
money  and  its  interest  according  to  the  tenor  of  his  bond.  The 
dates  that  are  over,  which  are  in  the  plantation,  the  owner  of  the 
plantation  shall  take  foorsooth. 

B.  .  .  .  the  man  dwelling  (in  the  house)  has  given  to  the 
owner  (of  the  house)  the  money  of  its  rent  in  full  for  the  year,  the 
owner  of  the  house  has  ordered  the  dweller  to  go  out  when  his  days 
are  not  full,  the  owner  of  the  house,  because  he  has  ordered  the 
dweller  to  leave  when  his  days  are  not  full,  (shall  give)  of  the 
money  which  the  dweller  gave  him.   .   .   . 

C.  If  a  man  has  to  pay,  in  money  or  corn,  but  has  not  money  or 
corn  to  pay  with,  but  has  goods,  whatever  is  in  his  hands,  before 
witnesses,  according  to  what  he  has  brought,  he  shall  give  to  his 
merchant.     The  merchant  shall  not  object;    he  shall  receive  it. 

We  now  resume  the  Hammurabi  Code.  Whether  A.  B.  C.  are  a  part 
of  the  original  code  or  whether  they  have  any  relation  to  it,  is  a  question 
which  with  our  present  data  can  not  be  answered. 

100 

.  .  .  interest  for  the  money  as  much  as  received,  he  shall 
give  his  note  for  it,  and  on  the  day  agreed  upon  he  shall  pay  the 
merchant. 

It  is  generally  agreed  that  the  above  and  the  few  next  following  sections 
refer  to  merchants  and  clerks  in  their  employ,  especially  to  traveling  sales- 
men, or  those  transacting  business  at  a  distance. 

101 

If  there  be  no  business  openings  in  those  places  to  which  he  has 
gone  [i.e.,  if  unsuccessful],  the  agent  shall  leave  intact  the  money 
which  he  received,  and  give  it  back  to  the  merchant. 

Harper  has,  instead  of  ** shall  leave  intact  the  money,"  "shall  double 
the  amount  of  money." 

102 

If  a  merchant  have  given  money  for  investment  to  an  agent, 
and  the  latter  suffer  loss  in  the  place  whither  he  went,  he  shall 
return  the  principal  in  full  to  the  merchant. 

Both  Harper  and  Johns  have  "as  a  favor,"  instead  of  "  for  investment." 


Chap.  XIV.J  THE  CODE  OF  HAMMURABI  407 


103 

If,  while  on  a  journey,  an  enemy  rob  a  man  [i.e.,  agent]  of  any- 
thing which  he  may  have,  the  agent  shall  take  an  oath  [by  the  name 
of  God],  and  shall  be  acquitted. 

104 

If  a  merchant  have  given  an  agent  grain,  wool,  oil,  or  any  other 
goods  for  trading  purposes,  the  agent  shall  give  in  writing  a  receipt 
[make  an  invoice]  for  the  amount  and  give  to  the  merchant. 
Then  he  shall  receive  a  receipt  from  the  merchant  for  the  money 
paid  the  merchant. 

Johns's  rendering  of  the  last  clause  is  as  follows  :  "The  agent  shall  take 
a  sealed  memorandum  of  the  price  which  he  shall  give  to  the  merchant." 
Harper's  rendering  is  virtually  the  same. 

105 

If  an  agent  have  neglected  to  take  a  receipt  for  the  money  he 
gave  the  merchant,  he  may  not  place  the  money  for  which  he  has^ 
no  receipt  to  his  own  account. 

106 

If  an  agent  obtain  money  from  a  merchant  and  dispute  it  with 
the  merchant,  the  latter  shall  charge  the  agent  before  God  and 
witnesses  [in  open  court]  with  having  the  money.  Then  [in  case 
of  conviction]  the  agent  shall  pay  three  times  the  amount  given 
him. 

107 

If  a  merchant  have  cheated  the  agent,  and  the  agent  have  re- 
turned already  all  which  the  merchant  had  given  him,  but  the 
merchant  deny  having  received  what  was  returned  to  him,  then 
the  agent  shall  accuse  the  merchant  before  God  and  witnesses. 
The  merchant  because  he  denied  having  received  all  that  he  had 
received,  shall  pay  the  agent  six  times  the  amount. 

108 

If  a  [female]  tavern-keeper  do  not  accept  grain  according  to 
gross  weight  as  pay  for  drinks,  but  take  silver ;   and  the  price  of 
*the  drink  as  compared  with  that  of  the  grain  is  less,  she  shall  be 
convicted  and  thrown  into  the  water. 


408  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

Harper's  rendering  of  the  second  clause  is:  "or  make  the  measure 
for  drink  smaller  than  the  measure  for  corn."  The  meaning  of  this  law- 
is  not  quite  clear ;  but  the  severity  of  the  penalty  shows  clearly  that  the 
tavern-keeper  took  great  advantage  of  her  customer. 

Execution  by  throwing  into  the  water  —  that  is,  by  drowning  —  was 
very  common  in  Babylonia.  (See  129,  133,  143,  155,  etc.)  Taverns  or 
saloons  were  kept  by  women.  Compare  the  case  of  Rahab,  the  harlot. 
(Josh.  2  :  1  ff.) 

109 

If  conspirators  assemble  in  the  house  of  a  tavern-keeper,  who  are 
not  captured  and  deUvered  to  the  court,  that  tavern-keeper  shall 
be  put  to  death. 

110 

If  a  votary  open  a  tavern,  or  enter  a  tavern  for  the  purpose  of 
drinking,  that  woman  shall  be  burnt  to  death. 

Burning  to  death  was  a  mode  of  punishment  practiced  in  Israel,  too, 
for  certain  crimes:  for  incest  (Lev.  20:  14),  and  for  unchastity  in  the 
daughter  of  a  priest.     (Lev.  21 :  9.) 

The  word  rendered  votary  probably  signifies  a  woman. 

Ill 

If  a  female  tavern-keeper  give  60  ka  of  usa-kani  for  drink,  she 
shall  receive  50  ka  of  grain  at  harvest. 

This  section  is  obscure.  Usa-kani  was  the  name  of  a  well-known 
drink  at  the  time  when  this  law  was  made.  Johns  renders  usa-kani, 
best  beer. 

[KA  =  one  liter,  or  about  990  grains.] 

112 

If  any  one  on  a  journej^  intrust  silver,  gold,  precious  stone,  or 
any  treasure  of  his  hand,  to  a  man  for  transportation,  if  this  man 
[the  carrier]  do  not  bring  all  that  was  to  be  transported  to  the 
appointed  place,  but  appropriates  them,  then  this  man  who  did  not 
deliver  the  goods  intrusted  to  him  shall  be  called  to  account,  and 
he  shall  pay  the  owner  of  the  goods  to  be  transported,  fivefold,  for 
all  that  intrusted  to  him. 

The  above  law  refers  to  goods  intrusted  to  persons  traveling,  as  com- 
mon carriers.  There  is  no  exact  parallel  in  Hebrew  legislation,  though 
the  following  seems  to  cover  the  same  ground : 

If  any  one  sin  and  commit  a  trespass  against  the  Lord,  and  deal 
falsely  with  his  neighbor  in  a  matter  of  deposit,  .  .  .  then 
shall  it  be,  if  he  has  sinned  and  is  guilty,  that  he  shall  restore  the 
deposit  which    was    committed    to    him;    ...  he    shall    even 


Chap.  XIV.]  THE   CODE   OF   HAMMURABI  409 

restore  it  in  full,  and  shall  add  the  fifth  part  more  thereto.     (Lev. 
6 :  2-5.) 

This  restoration  was  to  be  followed  by  a  religious  ceremony.  (Lev. 
6 : 6  f .) 

113 

If  any  one  have  a  claim  for  grain  or  money  on  another  man,  and 
he  shall  take  from  the  grain-heap  or  granary  without  the  knowl- 
edge of  the  owner,  that  man  shall  be  charged  before  the  court  with 
having  taken,  without  the  knowledge  of  the  owner,  grain  from  the 
grain-heap  or  granary,  and  he  shall  restore  the  grain  which  he  took. 
He  shall  forfeit  all  that  was  due  him  [the  entire  amount  of  his  debt]. 

114 

If  a  man  have  no  claim  for  grain  or  money  upon  another,  and 
levy  a  distraint,  he  shall  pay  one-third  of  a  mina  of  silver  in  each 
case  of  distraint. 

115 

If  a  man  have  a  claim  for  grain  or  money  upon  another,  and  levy 
a  distraint,  and  the  man  thus  seized  die  a  natural  death  in  the  house 
of  his  distrainer,  that  case  has  no  penalty. 

116 

If  the  one  seized  die  of  blows  or  of  bad  treatment  in  the  house 
of  his_distrainer,  the  owner  of  the  one  seized  shall  bring  fh^  mer- 
chant to  account ;  if  he  be  the  son  of  a  freeborn  man,  then  the  son 
of  the  merchant  shall  be  put  to  death ;  if  he  be  a  slave,  he  shall 
pay  one-third  of  a  mina  of  silver,  and  he  [the  distrainer]  shall 
forfeit  all  that  he  gave  as  a  loan. 

Here  we  have  a  most  literal  carrying  out  of  the  lex  talionis,  "eye  for 
eye,  and  tooth  for  tooth,"  or  rather  son  for  son.  We  have  no  evidence 
that  the  Hebrew  law  ever  authorized  the  punishing  of  a  child  for  the  sin 
of  his  parent.  It  is  true  that  children  providentially  have  to  suffer  phys- 
ical pain,  etc.,  for  the  transgression  of  their  parents.  (Ex.  20 :  5  and 
34:  7.)  They  suffer  by  the  "self-acting  operation  of  natural  laws."  In 
the  providence  of  God  the  natural  ties  uniting  a  family  are  such  that  it 
is  difficult  for  one  member  to  escape  entirely  the  consequences  of  an- 
other's sins.  In  ancient  times  it  was  not  uncommon  to  punish  an  entire 
family  for  the  sins  of  one  member.  (See  Est.  9  :  13  f . ;  Dan.  6  :  25 ; 
Herodotus  III,  119.)  The  humane  law  of  the  Hebrews  contrasts  well 
with  the  above.     We  read  : 

The  fathers  shall  not  be  put  to  death  for  the  children,  neither 
shall  the  children  be  put  to  death  for  the  fathers :  every  man  shall 
be  put  to  death  for  his  own  sin.     (Deut.  24 :  16.) 


410  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 


117 

If  a  man  incur  a  debt  and  sell  his  wife,  son,  or  daughter  for 
money,  or  bind  them  out  to  forced  labor,  three  years  shall  they 
work  in  the  house  of  their  taskmaster;  in  the  fourth  year  they 
shall  be  set  free. 

The  Hebrew  law  is  as  follows : 

If  thy  brother,  an  Hebrew  man,  or  an  Hebrew  woman,  be  sold 
unto  thee,  and  serve  thee  six  years  :  then  in  the  seventh  year  thou 
shalt  let  him  go  free  from  thee.    (Deut.  15  :  12.    See  also  Ex.  21 : 2.) 

Though  the  term  of  service  was  longer  in  Israel  than  in  Babylonia, 
the  end  thereof  was  tempered  with  abundant  mercy,  as  the  following 
clearly  shows : 

And  when  thou  lettest  him  go  free  from  thee,  thou  shalt  not  let 
him  go  empty  :  thou  shalt  furnish  him  liberally  out  of  thy  flock,  and 
out  of  thy  threshing-floor,  and  out  of  thy  wine-press ;  as  the  Lord 
thy  God  redeemed  thee.     (Deut.  15  :  13  f.) 

118 

If  he  bind  a  male  or  female  slave  to  forced  labor,  and  the  mer- 
chant let  them  out  to  another  for  pay,  no  objections  can  be  made. 

119 

If  a  man  incur  debt,  and  sell  for  money  a  female  slave,  who  has 
borne  him  children ;  the  money  which  the  merchant  has  paid  shall 
be  returned  by  the  owner  of  the  slave,  and  he  shall  ransom  his 
female  slave. 

The  Hebrew  law  also  favored  concubines.  The  law  concerning  women 
taken  captives  in  war  and  forced  to  concubinage  read  thus : 

And  it  shall  be  if  thou"  have  no  delight  in  her,  then  thou  shalt 
let  her  go  whither  she  will ;  but  thou  shalt  not  sell  her  as  a  slave, 
because  thou  hast  humbled  her.  (Deut.  21 :  14.  See  also  Ex. 
21 :  7-11.) 

120 

If  a  man  store  his  grain  in  the  house  of  another,  and  some  dam- 
age happen  to  the  stored  grain,  or  if  the  owner  of  the  house  open 
the  granary  and  take  some  of  the  grain,  or  dispute  concerning  the 
quantity  of  grain  stored  in  his  house ;  then  the  owner  of  the  grain 
shall  claim  the  grain  before  God  [in  open  court],  the  owner  of  the 


I 

^■Chap.  XIV.]  THE   CODE   OF  HAMMURABI  411 

^^house  shall  return  the  grain  [in  full  double  the  amount,  H.]  to  the 
owner  of  the  grain. 

For  the  general  law  of  the  Hebrews  covering  all  kinds  of  deposit,  see 
Ex.  22:7-10. 

121 

If  a  man  store  grain  in  the  house  of  another,  he  shall  pay  storage 
price  of  one  GuR  for  every  Ka  per  year. 

122 

If  a  man  deposit  silver,  gold,  or  anything  whatsoever,  all  that  he 
may  deposit  he  shall  show  to  witnesses,  make  a  contract,  and  then 
he  shall  deposit. 

We  find  no  exact  parallel  in  Hebrew  legislation.  See,  however, 
Lev.  6 : 2-7. 

f  123 

,  If  a  man  deposit  anything  without  witnesses  and  contract,  and 
they  at  whose  place  the  deposit  was  made,  deny  it,  there  is  no  legal 
redress  in  that  case. 

124 

If  a  man  deposit  silver,  gold,  or  anything  whatsoever  with 
another  in  the  presence  of  witnesses,  and  the  depositary  deny  it,  he 
shall  be  brought  before  the  court,  and  whatever  he  has  denied  he 
shall  pay  in  full  [if  convicted]. 

Harper  renders  the  last  clause:  "he  shall  double  whatever  he  has 
disputed,  and  repay  it." 

125         t^^^'^^O    H     ^    3    ^  ' 

If  a  man  deposit  any  thing,  and  at  the  depositary,  through  bur- 
glary or  robbery,  his  property,  in  common  with  that  of  the  owner  of 
the  place  be  lost,  then  the  owner  of  the  place,  through  whose  care- . 
lessness  the  loss  occurred,  must  compensate  in  full  the  owner  of  the 
[stolen]  goods.  The  owner  of  the  place  shall  follow  up  and  try  to 
recover  the  lost  property,  and  take  it  from  the  thief. 

The  Hebrew  law,  as  already  pointed  out,  was  quite  similar.  (See 
Ex.  22  :  7,  8.) 

126 

If  a  man,  who  has  not  lost  anything,  say  that  he  has  lost  something, 
and  puts  forth  false  claims,  he  shall  make  known  his  [pretended] 


i^ 


412  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

loss  in  the  presence  of  God  [before  a  court  of  law],  then  he  shall  be 
fully  compensated  for  all  his  alleged  loss. 

Harper's  rendering  of  the  latter  part  of  this  law  is:  ^*he  shall  double 
and  pay  for  the  (alleged)  loss  the  amount  for  which  he  had  made  claim." 

This  law,  if  the  above  translation  be  correct,  seems  strange  and  unfair. 
Nevertheless  we  must  remember  that  perjury  was  not  as  common  then 
as  in  later  ages.  To  swear  was  a  religious  act,  a  most  solemn  thing ; 
thus  to  swear  falsely  was  very  risky.  All  the  Semitic  people  recognized 
the  sacredness  of  an  oath.  They  superstitiously  believed  that  an  oath 
taken  at  a  holy  place,  before  some  divinity,  would  be  speedily  and  cer- 
tainly avenged  in  case  of  perjury.  The  custom  of  swearing  or  declaring 
upon  oath  at  a  sanctuary  in  .order  to  declare  one's  innocence,  was  known 
also  to  Israel.     We  read  in  1  Kings  8  :  31 : 

If  a  man  sin  against  his  neighbor,  and  an  oath  be  laid  upon  him 
to  cause  him  to  swear  before  Thine  altar  in  this  house ;  then  hear 
Thou  in  heaven,  and  do,  and  judge  Thy  servants,  condemning  the 
wicked,  to  bring  his  way  upon  his  own  head ;  and  justifying  the 
righteous,  to  give  to  him  according  to  his  own  righteousness. 
(See  also  Ex.  22:11.) 

127 

If  a  man  point  his  finger  at  [slander]  a  votary  or  at  a  man's  wife, 
but  can  not  prove  his  charge,  he  shall  be  taken  before  the  judge, 
and  shall  be  branded  on  his  forehead. 

The  literal  translation  of  the  phrase  ^'branded  on  his  forehead"  is 
"to  shear  the  brow."  Cook  has  the  following  remark:  "The  precise 
nature  of  the  penalty  is  not  clear.  It  is  conceivable  that  the  forelock, 
the  mar^  of  a  freedman,  was  cut  off ;  but  the  same  word  is  used  elsewhere 
of  the  branding  of  slaves." 

128 

If  a  man  marry  a  wife,  but  have  made  no  contract  with  her,  this 
woman  is  not  a  [legal]  wife. 

The  object  of  this  law  was  perhaps  to  protect  one  against  a  secret 
marriage. 

129 

If  a  man's  wife  be  caught  lying  with  another  man,  both  shall  be 
bound  and  thrown  into  the  water,  unless  the  husband  of  that 
woman  desire  to  pardon  his  wife,  or  the  king  his  servant. 

The  Hebrew  law  for  adultery  has  much  in  common  with  the  above. 
It  reads : 

And  the  man  that  committeth  adultery  with  another  man's 
wife,  even  he  that  committeth  adultery  with  his  neighbor's  ^viie, 
the  adulterer  and  the  adulteress  shall  surely  be  put  to  death. 
(Lev.  20 :  10.) 


Chap.  XIV.]  THE   CODE   OF   HAMMURABI  413 

The  law  as  given  in  Deut.  22 :  22,  reads : 

If  a  man  be  found  lying  with  a  woman  maTried  to  an  husband, 
then  they  shall  both  of  them  die. 

Though  the  Hebrew  law  makes  no  provision  for  pardon  in  any  case, 
by  either  husband  or  king,  we  know  that  the  husband  did  sometimes 
pardon  his  wife.     (See  Hos.  Chap.  1  and  2.) 

130 

If  any  one  violate  the  wife  [betrothed]  of  a  man,  who  has  not 
known  a  man,  but  who  is  still  hving  in  the  house  of  her  father,  and 
he  lie  with  her  and  be  caught,  he  shall  be  put  to  death,  but  the 
woman  shall  go  free. 

The  reference  here  is,  without  doubt,  to  a  b^^trothed  maiden  violated 
against  her  will.     The  Hebrew  law  is  almost  identical.     It  reads : 

But  if  the  man  find  the  damsel  that  is  betrothed  in  the  field, 
and  the  man  force  her,  and  lie  with  her :  then  the  man  only  that 
lay  with  her  shall  die  :  but  unto  the  damsel  they  shall  do  nothing, 
there  js^-ki  the  damsel  no  sin  worthy  of  death.     (Deut.  22  :  25.) 


In  case^he  damsel  was  not  betrothed,  her  seducer  was  forced  to  marry 
her  wi thou t^ the  possibility  of  a  divorce,  and  pay  her  father  a  large  sum  of 
money  as  penalty.     (See  Deut.  22:28  f.) 

Jerem^as  thinks  that  the  above  section  proves  that  child-marriages 
were  in  vogue. 

131 

If  a  man  have  accused  his  own  wife,  but  she  has  not  been  caught 
lying  with  another  man,  she  shall  swear  by  the  name  of  God,  and 
then  may  return  to  her  [father's]  house. 

In  Israel  the  woman  was  subjected  to  an  ordeal ;  and  in  case  the  charge 
against  her  could  not  be  proved,  the  husband  was  fined  one  hundred 
shekels,  and  had  to  live  with  his  wife.     (Deut.  22  :  19.     See  next  section.) 

132 

If  the  finger  have  been  pointed  against  a  man's  wife  [i.e.,  if  she 
have  been  suspected],  but  she  have  not  been  caught  lying  with 
another  man,  she  shall  plunge  into  the  river  for  her  husband's 
[satisfaction]. 

This  was  evidently  a  case  where  a  woman  had  fallen,  justly  or  unjustly, 
into  bad  repute,  when  the  scandal  had  become  public  property.  To 
prove  her  innocence  she  must  seek  the  justice  of  the  river-god,  whose 
duty  it  was  to  protect  the  innocent,  and  punish  the  guilty,  by  swallowing 
them  up.  The  Hebrews,  too,  had  their  ordeals,  and  indeed  in  cases  where 
women  were  suspected  of  infidelity  to  their  husbands,  they  were  forced 
to  drink  the  so-called  waters  of  bitterness.  The  Hebrew  law  is  too 
lengthy  to  insert  in  this  place,  so  the  reader  is  referred  to  Num.  5  :  12-28. 


414  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

133 

If  a  man  be  taken  captive  in  war,  and  there  is  sustenance  in  his 
house,  and  his  wife  have  left  his  house  and  court  and  have  entered 
the  house  of  another,  because  that  woman  has  not  guarded  her 
body,  but  entered  another's  house,  she  shall  be  condemned  accord- 
ing to  law  and  thrown  into  the  waters. 

The  punishment  is  the  same  as  in  the  case  of  flagrant  adultery.  The 
wife  should  have  awaited  the  return  of  her  husband,  or  at  least  till  there 
was  no  food  in  her  house. 

134 

If  a  man  have  been  taken  captive  in  war,  and  there  be  no  suste- 
nance in  his  house,  when  the  wife  of  this  man  enter  another's  house 
(marry  another  man] ;  this  woman  incurs  no  penalty. 

135 

If  a  man  have  been  taken  captive  in  war,  and  there  be  no  sus- 
tenance in  his  house,  when  his  wife  have  entered  into  the  house  of 
another,  and  have  borne  children,  and  if  the  first  husband  return 
later  and  come  to  his  home,  that  woman  shall  return  to  her  first 
husband,  but  the  children  shall  follow  their  father  [the  second 
husband]. 

136 

If  a  man  leave  his  native  place  and  flee  away,  and  his  wife 
subsequently  enter  into  another's  house  [marry  another  man],  but 
if  then  he  return  and  desire  to  take  his  wife ;  because  he  left  his 
native  place  and  ran  away,  this  wife  shall  not  return  to  him. 

137 

If  a  man  have  made  up  his  mind  to  separate  from  a  concubine 
who  has  borne  him  children,  or  from  his  wife  who  has  borne  him 
children,  then  he  shall  give  back  to  that  woman  her  dowry,  and  the 
usufruct  of  the  field,  garden,  and  property,  so  that  she  may  bring 
up  her  children ;  when  she  shall  have  brought  up  the  children  she 
shall  have  a  share  equal  to  that  of  a  son,  of  all  that  has  been  given 
to  her  children.     She  may  marry  the  man  of  her  choice. 

The  Hebrew  law  reads  : 

When  a  man  taketh  a  wife  and  marrieth  her,  it  shall  be  if  she 
find  no  favor  in  his  eyes,  because  he  has  seen  some  unseemly  thing 


Chap.  XIV.]  THE   CODE   OF   HAMMURABI  415 

in  her,  that  he  shall  write  her  a  bill  of  divorcement,  and  give  it  in 
her  hand,  and  send  her  out  of  his  house,  and  when  she  is  departed 
out  of  his  house,  she  may  go  and  be  another  man's  wife.  (Deut. 
24:  1  ff.) 

From  the  language  of  Rachel  and  Leah  (Gen.  31 :  14-16),  as  Cook 
observes,  it  may  be  legitimately  inferred  that  in  Israel,  too,  it  was  cus- 
tomary for  fathers  to  give  marriage  portions  to  their  daughters. 

138 

If  a  man  put  away  his  wife  who  has  not  borne  him  children,  he 
must  give  her  the  amount  of  the  purchase  money  as  much  [as  he 
paid  her  father  when  he  married  her],  and  the  dowry  which  she 
brought  from  the  house  of  her  father ;  then  he  may  put  her  away. 

It  is;  not  stated  what  the  ground  of  divorce  was  in  this  case,  though 
we  may  infer  that  it  was  the  barrenness  of  the  wife.     (See  under  131.) 

139 

If  there  were  no  purchase  money,  he  shall  give  her  one  mina  of 
silver  for  a  divorce. 

A  mina  was  one-sixtieth  of  a  talent,  or  about  $30  in  our  money. 

140 

If  he  be  a  freedman,  he  shall  give  her  one-third  of  a  mina  of 
silver. 

141 

If  a  man's  wife,  living  in  his  house,  has  made  up  her  mind  to 
leave  that  house,  and  through  extravagance  run  into  debt,  have 
wasted  her  house,  and  neglected  her  husband,  one  may  proceed 
judicially  against  her ;  if  her  husband  consent  to  her  divorce,  then 
he  may  let  her  go  her  way.  He  shall  not  give  her  anything  for  her 
divorce.  If  her  husband  do  not  consent  to  her  divorce  and  take 
another  wife ;  the  former  wife  shall  remain  in  the  house  as  a  servant. 

142 

If  a  wife  quarrel  with  her  husband,  and  say,  Thou  shalt  not 
possess  me ;  then  the  reasons  for  her  prejudices  must  be  examined. 
If  she  be  without  blame,  and  there  be  no  fault  on  her  part,  but  her 
husband  have  been  tramping  around,  belittling  her  very  much ; 
then  this  woman  shall  be  blameless,  she  shall  take  her  dowry  and 
return  to  the  house  of  her  father. 


416  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

143 

If  she  be  not  frugal,  if  she  gad  about,  is  extravagant  in  the  house, 
behttle  her  husband,  they  shall  throw  that  woman  into  the  water. 


144 

If  any  one  take  a  wife,  and  this  wife  give  a  maid  to  her  husband, 
and  the  latter  bear  children,  but  this  man  make  up  his  mind  to  take 
another  concubine,  one  shall  not  countenance  him.  He  may  not 
take  a  concubine. 

Though  not  clearly  stated,  the  implication  is,  that  the  wife  mentioned 
in  the  above  section  was  childless.  Hence  her  willingness  to  give  her  hus- 
band a  maidservant  as  concubine.  The  fact  that  this  concubine  had  borne 
children,  made  it  illegal  for  the  husband  to  take  another  concubine.  The 
children  of  a  concubine  could  be  regarded  as  those  of  a  legal  wife.  There 
would  thus  be  an  added  barrier  to  divorce.  Childlessness,  occasioned  by 
the  barrenness  of  the  wife,  has  always  been  regarded  in  the  East,  among 
Semitic  people,  a  sufficient  cause  for  divorce.  Keeping  this  in  mind,  the 
words  of  Leah  are  easily  understood : 

And  Leah  said,  God  has  endowed  me  with  a  good  dowry,  now 
will  my  husband  dwell  with  me,  because  I  have  borne  him  six 
sons.     (Gen.  30  :  20.     See  also  29 :  34.) 


145 

If  a  man  take  a  wife,  and  she  bear  him  no  children,  and  he  make 
up  his  mind  to  take  a  concubine ;  if  he  takes  a  concubine  and  bring 
her  to  his  house,  this  concubine  shall  not  stand  on  equality  with 
his  wife. 

146 

If  a  man  take  a  wife  and  she  give  her  husband  a  maid-servant 
for  a  wife,  and  this  one  bear  him  children,  and  then  this  maid- 
servant have  tried  to  make  herself  equal  with  her  mistress,  because 
she  has  borne  children,  her  mistress  may  not  sell  her  for  money, 
but  may  make  her  a  servant,  and  counj  her  as  one  of  her 
servants. 

The  Bible  reader  will  recall  the  story  of  Sarah  and  Hagar,  which  offers 
a  striking  parallel  to  the  above  section.  Indeed,  it  is  more  than  probable 
that  Abraham's  treatment  of  Hagar  was  in  strict  accordance  with  the 
Babylonian  law  governing  such  cases.  (See  Gen.  16 :  1  ff.,  and  the  case 
of  Rachel,  30:  1  ff.) 


Chap.  XIV.J  THE   CODE   OF  HAMMURABI  417 

147 

If  she  have  not  borne  children,  then  the  mistress  may  sell  her 
for  money. 

The  Hebrews  forbade  the  selling  of  a  concubine  to  foreigners. 

To  sell  unto  a  strange  nation,  he  shall  have  no  power.     (Ex.  21:8.) 


148 

If  a  man  take  a  wife,  and  sickness  attack  her,  if  he  then  set  his 
face  to  take  a  second  one,  he  may ;  but  he  shall  not  put  away  his 
wife,  whom  disease  has  attacked;  on  the  other  hand,  she  shall 
dwell  in  the  house  he  has  built,  and  he  shall  support  her  as  long  as 
she  Hves. 

149 

If  this  woman  be  unwilling  to  dwell  in  her  husband's  house,  then 
he  must  give  back  to  her  the  dowry  which  she  brought  from  her 
father's  house,  and  she  may  go. 


150 

If  a  man  give  his  wife  a  field,  garden,  house,  or  goods,  and  give 
her  a  sealed  deed  for  the  same,  then,  after  the  death  of  her  husband, 
her  sons  can  not  present  claims;  the  mother  may  will  what  she 
leaves  to  that  one  of  her  sons  whom  she  may  prefer,  but  to  the 
brothers  [her  other  sons]  she  need  not  give. 

Harper  renders  the  last  clause,  "but  to  a  brother  she  may  not,"  and 
similarly  Johns:  "to  brothers  she  shall  not  give."  If  their  translations 
be  the  correct  one,  then  the  import  of  the  section  is,  that  the  estate  must 
be  kept  in  the  husband's  family,  but  can  not  be  willed  to  the  wife's  rela- 
tives.    (See  Section  171  ff.) 

151 

If  a  woman  dwelling  in  the  house  of  a  man  have  contracted  with 
her  husband  that  no  creditor  of  his  can  arrest  her  [for  his  obliga- 
tions], and  has  forced  from  him  a  contract  to  this  effect,  so,  if  that 
man  had  a  debt  before  he  had  taken  this  wife,  the  creditor  can  not 
hold  the  wife  for  it;  and  if  this  woman  had  a  debt  before  she 
entered  her  husband's  house,  the  creditor  may  not  hold  the  hus- 
band responsible. 


418  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 


152 

If  a  debt  have  been  contracted  after  the  woman  entered  the 
house  of  a  man  [after  marriage],  both  of  them  are  responsible  to 
the  merchant. 

153 

If  a  man's  wife,  on  account  of  another,  cause  the  death  of  her 
husband,  she  shall  be  impaled. 

Neither  impaling  nor  hanging  was  ever  practiced  in  Israel,  though  im- 
paling was  not  uncommon  in  Assyria.  It  is  true  that  we  sometimes  read 
of  bodies  being  hanged  or  placed  upon  trees,  but  this  was,  without  doubt, 
after  the  malefactor  had  been  previously  put  to  death.  There  is  no  ex- 
plicit law  in  Hebrew  legislation  against  a  wife  murdering  her  husband, 
which  goes  to  prove  that  such  a  crime  must  have  been  exceedingly  uncom- 
mon, if  it  ever  happened. 

154 

If  a  man  have  known  his  daughter,  he  shall  be  driven  from  his 
city  [the  place  he  lives  in]. 

155 

If  a  man  have  betrothed  a  girl  to  his  son,  and  his  son  have 
known  her,  but  he  [the  father]  afterwards  lie  with  her,  and  be 
caught  with  her,  they  shall  bind  him  and  throw  him  into  the  water. 

The  last  clause  in  the  original  has  her  and  not  him.  This  accounts 
for  Johns's  correct  rendering,  "and  cast  her  into  the  waters."  The  ''her'' 
is  probably  a  textual  error  for  "him."  (See  Section  130.)  Harper, 
Winckler,  Lagrange,  and  Scheil  substitute  "him"  for  "her"  of  the  text. 
Notwithstanding  the  array  of  authority  for  substituting  "him,"  one  can 
not  resist  the  temptation  to  suggest  the  substitution  of  "them."  As  the 
law  now  reads  nothing  is  said  of  the  punishment  of  the  woman.  The 
Hebrew  law  reads  thus  : 

And  if  a  man  lie  with  his  daughter-in-law,  both  of  them  shall  be 
surely  put  to  death.     (Lev.  20:  12.) 

The  reader  shall  have  noticed  also  that  the  Babylonian  and  Hebrew 
custom  of  a  father  selecting  a  wife  for  his  son  is  the  same.  (See  Gen. 
24:4;   38:6;    and  2  Kings  14:9.) 


156 

If  a  man  have  betrothed  a  bride  to  his  son,  and  his  son  has  not 
known  her,  but  he  [the  father]  afterwards  lie  with  her,  he  shall 
pay  one-half  mina  of  silver,  and  return  to  her  all  she  brought  from 
her  father's  house.     She  may  marry  the  man  of  her  choice. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  419 

Hebrew  legislation  offers  no  exact  parallel.  We  know,  however,  that 
the  violation  of  a  virgin  was  a  grave  offense  in  Israel.  We  read  in  Deut. 
22  :  28,  29  : 

If  a  man  finds  a  damsel  that  is  a  virgin,  which  is  not  betrothed, 
and  lay  hold  on  her,  and  lie  with  her,  and  they  be  found  ;  then  the 
man  that  lay  with  her  shall  give  unto  the  damsel's  father  fifty 
shekels  of  silver,  and  she  shall  be  his  wife,  because  he  hath  humbled 
her. 

157 

If  a  man  after  his  father  [is  dead  ?]  lie  with  his  mother,  one  shall 
burn  them  both. 

Burning  to  death  was  a  penalty  known  to  Israel,  too,  as  we  see  from 
the  following : 

If  a  man  take  a  wife  and  her  mother,  it  is  wickedness ;  they  shall 
be  burnt  with  fire,  both  he  and  they.     (Lev.  20  :  14.) 

We  further  read : 

And  the  daughter  of  any  priest,  if  she  prof aneth  herself  by  play- 
ing the  harlot,  she  profaneth  her  father ;  she  shall  be  burnt  with 
fire.     (Lev.  21 :  9.) 

This  was  a  horrible  mode  of  punishment,  and  many  commentators, 
to  avoid  the  severity  of  such  a  law,  suggest  that  the  burning  took  place 
only  after  death  by  stoning,  as  in  the  case  of  Achan.     (Josh.  7 :  25.) 

158 

If  a  man,  after  his  father  [is  dead],  be  surprised  lying  with  a  wife 
of  his  father,  who  has  borne  children,  he  shall  be  driven  out  of  the 
house  of  his  father. 

This  and  the  preceding  sections  are  very  similar.  In  157  we  have 
reference  to  one's  own  mother,  and  in  158  to  a  step-mother,  or  foster- 
mother.  This  is  evident  from  the  difference  in  degree  of  punishment. 
It  seems  that  the  death  penalty  was  inflicted  in  Israel  for  incest,  whether 
with  one's  own  mother  or  step-mother.     The  law  reads : 

The  nakedness  of  thy  father,  even  the  nakedness  of  thy  mother, 
shalt  thou  not  uncover.     (Lev.  18 :  7.) 

Then  again : 

The  nakedness  of  thy  father's  wife  shalt  thou  not  uncover. 

(Lev.  18 :  8.) 

The  phrase,  **to  uncover  the  nakedness"  is  a  Hebraism  for  to  have 
carnal  intercourse.     This  is  clear  from  Lev.  20 :  11,  where  we  read  : 

And  the  man  that  lieth  with  his  father's  wife  hath  uncovered  his 
father's  nakedness :  both  of  them  shall  be  put  to  death. 


420  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

The  phrase,  "to  be  driven  out  of  his  father's  house,"  means  about  the 
same  as  "to  be  disinherited"  in  our  country. 


159 

If  a  man,  who  has  brought  a  present  into  his  father-in-law's 
house,  and  given  the  dowry,  look  upon  another  woman,  and  say  to 
his  father-in-law,  "I  will  not  take  thy  daughter  to  wife,"  the  father 
of  the  maiden  shall  keep  all  that  he  brought  him. 

The  giving  of  presents  to  the  prospective  wife  and  her  relatives  is  a 
custom  still  extensively  observed  in  Oriental  lands.  We  all  remember 
the  gifts  of  Isaac's  servant  to  Rebekah  and  her  people.     (Gen.  24 :  53  f.) 


160 

If  a  man  bring  presents  into  the  house  of  his  father-in-law,  and 
give  a  dowry;  if  then  the  girl's  father  say,  "I  will  not  give  my 
daughter  to  you ;"  then  he  shall  give  back  fully  all  that  was  given 
him. 

Harper  renders  the  last  clause:  ""'he  [the  father-in-law]  shall  double 
the  amount  which  was  brought  to  him,  and  return  it." 


161 

If  a  man  bring  a  present  into  the  house  of  his  father-in-law,  and 
give  a  dowry,  and  a  friend  slander  him ;  and  his  father-in-law  say 
to  the  young  suitor,  "You  shall  not  have  my  daughter;"  then  he 
shall  give  back  fully  all  that  was  brought  to  him  [double  the  amount, 
Harper] ;  but  the  friend  may  not  marry  his  wife. 


162 

If  a  man  take  a  wife  and  she  bear  him  children,  and  if  that 
woman  die,  her  father  may  have  no  claim  on  her  dowry.  It  be- 
longs to  her  children. 

163 

If  a  man  take  a  wife,  and  she  bear  him  no  children,  and  if  that 
woman  die ;  if  the  father-in-law  return  the  dowry  which  that  man 
brought  to  his  house  [house  of  the  father-in-law],  the  husband  has 
no  claim  upon  the  marriage  portion  of  that  woman.  It  belongs  to 
the  house  of  her  father. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  421 

164 

If  his  father-in-law  do  not  return  the  dowry,  he  may  deduct  the 
price  of  the  marriage  portion  from  her  dowry,  and  give  [the  balance 
of]  the  dowry  to  the  house  of  her  father. 


165 

If  a  man  give  his  son,  whom  he  prefers,  a  field,  garden,  or  house, 
and  draw  up  a  sealed  deed  for  the  same ;  if  afterwards  the  father 
die,  and  the  brothers  divide  [the  property]  they  shall  give  him  the 
present  of  his  father,  and  he  shall  take  it;  and  they  shall  share 
equally  with  him  in  the  paternal  possessions  [which  are  left]. 

Harper  renders  the  second  part  of  this  section  thus:  "He  shall  take 
the  present  which  the  father  gave  him,  and  over  and  above  they  shall 
divide  the  goods  of  the  father's  house  equally."  Johns  virtually  agrees 
with  Harper's  translation. 

Partiality  to  favorite  sons  was  often  shown  by  Hebrew  fathers  too. 
We  see  this  in  the  history  of  Jacob  (Gen.  48 :  19),  and  of  David  (1  Kings 
1 :  11-13) ;  and  this,  too,  in  spite  of  the  fact  that  the  law  gave  the  first- 
born a  double  portion.     (Deut.  21 :  15  ff.) 


166 

If  a  man  take  wives  for  his  sons,  but  not  for  his  minor  son,  and 
then  die;  when  the  sons  divide  [the  property],  they  shall  give  to 
the  minor  son,  who  has  not  taken  a  wife,  in  addition  to  his  share, 
money  for  purchase  money  [to  pay  the  father-in-law],  and  they 
shall  help  him  to  take  a  wife. 

Notice  a  similar  law  for  a  sister,  Section  184. 


167 

If  a  man  take  a  wife,  who  bear  him  children,  and  that  woman 
die,  and  he  take  a  second  wife,  who  bear  him  children,  and  then 
the  father  die ;  the  children  shall  not  partition  the  estate  according 
to  the  mothers ;  they  shall  take  only  the  marriage  portion  of  their 
mothers  [the  two  sets  of  children  shall  divide  their  mother's  prop- 
erty], but  the  goods  of  their  father  all  share  equally. 

The  above  law  is  perfectly  clear  and  just :  The  children  share  equally 
in  paternal  property ;  whereas  a  mother's  dowry  can  be  divided  between 
her  own  children  only,  but  none  of  it  may  be  given  to  step-children. 


422  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

168 

If  a  man  decide  to  thrust  out  [disinherit]  his  son,  and  say  to  the 
judge,  "  I  will  thrust  out  my  son ; "  then  the  judge  shall  examine 
into  his  reasons,  and  if  the  son  have  no  grievous  fault,  which  justi- 
fies his  being  thrust  out,  the  son  may  not  be  cut  off  from  sonship. 


169 

If  he  have  committed  a  grave  fault,  which  may  justify  the  father 
in  cutting  him  off  from  sonship,  he  shall  pardon  the  first  offense ; 
but  if  he  have  committed  a  grave  fault  the  second  time,  the  father 
may  deprive  him  of  sonship. 

170 

If  a  man's  wife  bear  him  children,  or  his  maid-servant  bear  him 
children,  and  the  father  during  his  lifetime  say  to  the  children  whom 
his  maid-servant  has  borne  him,  "My  children,"  and  count  them 
with  the  children  of  his  wife,  after  the  death  of  the  father,  the 
children  of  his  wife  and  those  of  his  maid-servant  shall  share  equally 
in  the  goods  of  the  father's  house.  The  children  of  the  wife  have 
to  divide  and  to  choose. 

The  probable  meaning  of  the  last  clause  is,  that  the  children  of  the 
first  wife  have  the  first  choice  in  case  of  dispute,  when  the  final  distribu- 
tion of  property  is  made. 

171 

If  the  father  during  his  lifetime  have  not  said  to  the  children, 
whom  the  maid-servant  has  borne  him,  "My  children,"  after  the 
father  dies,  the  children  of  the  maid-servant  shall  not  share  with 
those  of  the  wife.  The  maid-servant  and  her  children  shall  be 
given  their  freedom,  the  children  of  the  wife  may  have  no  claim 
for  servitude  upon  the  children  of  the  maid-servant.  The  wife 
shall  receive  her  dowry  and  the  marriage  portion  which  her  hus- 
band gave  and  deeded  her,  and  she  shall  remain  in  the  house  of  her 
husband  as  long  as  she  lives,  and  shall  enjoy  [the  property  left  her]. 
She  can  not  sell  it  for  money.  What  she  leaves  belongs  to  her 
children. 

Though  a  Hebrew  father  might  give  gifts  to  the  children  of  concubines 
(Gen.  25  :  6),  it  seems  that  they  had  not  the  right  to  any  inheritance  from 
the  father's  estate.     (Gen.  24:36;    Judg.  11:2.) 


Chap.  XIV. J  THE  CODE  OF  HAMMURABI  423 

172 

If  her  husband  have  not  given  her  a  gift,  they  shall  restore  her 
dowry,  and  she  shall  receive  from  the  property  of  her  husband  a 
share  equal  to  that  of  a  son.  If  her  sons  worry  her,  so  as  to  drive 
her  out  of  the  house,  then  the  judge  shall  inquire  into  the  matter, 
and  if  the  sons  be  to  blame,  the  wife  shall  not  leave  her  husband's 
house,  but  if  the  wife  be  determined  to  leave  the  house,  she  must 
leave  to  her  sons  the  gift  which  her  husband  gave  her,  but  the 
present  from  her  father  she  may  take.  She  may  marry  the  man  of 
her  heart  [choice]. 

173 

If  that  woman  bear  children  to  her  second  husband  in  the  place 
whither  she  went,  and  then  die,  the  former  and  the  later  children 
shall  share  her  dowry. 

174 

If  she  bear  no  children  to  her  second  husband,  the  children  of 
her  first  husband  shall  have  her  dowry. 

175 

If  a  slave  of  the  palace,  or  a  slave  of  a  freedman,  take  to  wife  the 
daughter  of  a  freeman  and  beget  children,  the  master  of  the  slave 
shall  have  no  claim  for  service  upon  the  children  of  this  free  woman. 

It  is  not  always  possible  in  Assyrian  any  more  than  in  Hebrew  to  draw 
a  clear-cut  distinction  between  the  words  rendered  slave  and  servant. 
There  were  evidently  several  grades  of  slaves  among  all  the  Semitic  peo- 
ples. "The  Mosaic  law  contrasts  most  favorably  with  the  laws  of  con- 
temporary nations  in  its  humanity  towards  slaves."  As  in  Babylonia, 
so  in  Israel  too,  slaves  or  servants  were  allowed  to  marry  the  daughters 
of  freemen.  We  read  in  1  Chron.  2 :  35,  that  Sheshan  gave  his  daughter 
to  Jarha  his  servant  to  wife,  Abraham,  too,  was  pained  at  the  thought 
of  the  possibility  of  having  to  leave  all  his  property  to  Eliezer,  his  chief 
servant.     (Gen.  15 :  2.) 

176 

If  a  slave  of  the  palace,  or  a  slave  of  a  freedman,  take  to  wife 
the  daughter  of  a  freeman  [gentleman,  Johns],  and  if,  when  he 
marries  her,  she  enter  the  house  of  the  slave  of  the  palace  or  the 
slave  of  a  freedman  with  a  dowry  from  her  father's  house,  and  from 
the  time  they  set  up  housekeeping  and  acquire  property ;  if  later 
on  the  slave  of  the  palace  or  the  slave  of  the  freedman  die,  then  she 
who  was  free-born  may  receive  her  dowry,  and  all  which  she  and 
her  husband  had  acquired  since  they  were  united  together  shall 


424  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

be  divided  into  two  equal  parts ;  the  owner  of  the  slave  shall  take 
one  part,  and  the  free-born  woman  shall  take  the  other  for  her 
children.  If  the  free-born  woman  had  no  dowry,  she  shall  divide 
into  two  equal  parts  all  that  she  and  her  husband  had  acquired 
since  their  being  united  together;  the  owner  of  the  slave  shall 
receive  one-half,  and  the  free-born  woman  shall  take  the  other  for 
her  children. 

We  have  the  following  provision  in  Hebrew  legislation: 

If  he  [a  slave]  come  in  by  himself,  he  shall  go  out  by  himself ; 
if  he  be  married,  then  his  wife  shall  go  out  with  him.  If  his 
master  give  him  a  wife,  and  she  bear  him  sons  or  daughters ;  the 
wife  and  her  children  shall  be  her  master's,  and  he  shall  go  out  by 
himself.     (Ex.  21 :  3  f.) 

177 

If  a  widow,  whose  children  are  minors,  desire  to  enter  another 
house  [remarry],  she  shall  not  do  so  without  the  consent  of  the 
judges.  If  she  enter  into  another  house,  the  judges  shall  examine 
into  that  left  by  her  former  husband,  and  they  may  give  over  the 
house  of  the  former  husband  to  the  new  husband  and  that  woman, 
to  be  managed  by  them  and  they  [the  judges]  shall  cause  them  to 
draw  up  a  contract.  They  shall  keep  the  house  in  order,  and 
bring  up  the  children,  but  may  not  sell  the  household  goods  for 
money.  Whoever  may  buy  the  household  goods  of  a  widow's 
children  shall  forfeit  his  money,  and  the  goods  shall  revert  to  their 
owners. 

178 

If  [there  be]  a  votary  or  a  sacred  prostitute  [one  connected  with 
some  temple]  to  whom  her  father  has  given  a  dowry  and  a  deed  for 
the  same,  but  have  not  stated  in  the  deed,  which  he  has  drawn  up 
for  her,  that  she  may  bequeath  her  estate  to  whomsoever  she  please, 
and  have  not  explicitly  granted  her  full  power  for  disposing  of  it ; 
if  her  father  die,  her  brothers  shall  take  her  field  and  her  garden, 
and  they  shall  give  her  grain,  oil,  and  wool  according  to  the  value 
of  her  portion,  they  shall  satisfy  her.  If  her  brothers  do  not  give 
her  grain,  oil,  and  wool  according  to  the  value  of  her  portion,  and 
do  not  satisfy  her,  she  may  give  her  field  and  garden  to  a  renter, 
whom  she  may  select,  and  this  renter  shall  support  her.  Field 
and  garden,  and  all  which  her  father  gave  her,  she  shall  enjoy  as 
long  as  she  hves.  She  may  not  sell  or  transfer  it  to  any  other. 
What  she  has  inherited  belongs  to  her  brothers. 


Chap.  XIV.l  THE   CODE   OF  HAMMURABI  425 

179 

If  a  votary  or  sacred  prostitute,  to  whom  her  father  has  given  a 
dowry  and  a  deed  for  the  same,  and  has  stated  in  the  deed  that  she 
may  bequeath  her  estate  to  whomsoever  she  please,  and  have 
granted  her  full  powers  to  dispose  of  it;  after  her  father  dies, 
she  may  bequeath  her  estate  to  whomsoever  she  please.  Her 
brothers  have  no  claim  thereto. 


180 

If  a  father  do  not  give  his  daughter  —  marriageable  or  sacred 
prostitute  [therefore  unable  to  marry]  —  a  dowry,  and  then  die, 
she  shall  receive  from  the  paternal  estate  a  share  like  that  of  a 
son,  to  enjoy  it  as  long  as  she  lives.  After  her  [death]  it  belongs  to 
her  brothers. 

181 

If  a  father  devote  a  temple-maid  or  temple-virgin  to  a  god,  and 
give  her  no  dowry,  after  the  death  of  her  father  she  shall  receive 
from  the  estate  of  her  father  as  her  share,  one-third  of  a  son's 
portion,  to  enjoy  it  as  long  as  she  lives.  After  her  it  belongs  to  her 
brothers. 

The  exact  meaning  of  the  words  rendered  above  temple-maid  and 
temple-virgin  is  not  known.  Harper  translates  the  first  "devotee" 
and  transliterates  the  second  Nu-par.  Johns  has,  votary,  hierodule,  or 
Nu-bar.  We  have  followed  Scheil's  rendering.  The  section  evidently 
refers  to  two  different  classes  of  women  consecrated  to  the  temple  service. 
(See  110.) 

182 

If  a  father  do  not  give  his  daughter,  a  votary  of  Marduk  of 
Babylon,  a  dowry  and  a  deed  for  the  same,  after  her  father  dies  she. 
shall  receive  from  her  brothers,  as  her  share  of  the  paternal  estate, 
one-third  of  a  son's  portion ;  but  she  shall  not  have  the  manage- 
ment of  this.  A  votary  of  Marduk  may  bequeath  her  estate  to 
whomsoever   she   please. 

183 

If  a  man  give  his  daughter  by  a  concubine  a  dowry,  and  give  her 
to  a  husband,  and  a  written  deed  [regarding  the  dowry] ;  if  then 
the  father  die,  she  shall  not  have  a  share  of  her  father's  estate. 


426  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Pakt  III. 


184 

If  a  man  give  his  daughter  by  a  concubine  no  dowry,  and  do  not 
give  her  to  a  husband ;  if  then  the  father  die,  her  brothers  shall 
give  her  a  dowry  according  to  the  property  of  her  father,  and  they 
shall  give  her  a  husband. 

185 

If  a  man  take  a  child  in  his  name,  adopt  and  rear  him  as  a  son, 
this  grown-up  son  may  not  be  demanded  back. 

There  is  no  reference  in  the  Hebrew  law  to  immediate  adoption, 
though  it  is  morally  certain  that  where  the  interests  of  orphans  were  so 
protected  as  they  were  in  Israel,  the  practice  of  adopting  children  must 
have  obtained.  What  might  be  construed  as  regular  adoptions  are  the 
cases  of  Moses  by  Pharaoh's  daughter  (Ex.  2 :  10) ;  Genubath  (1  Kings 
11 :  20) ;  and  that  of  Esther  by  Mordecai  (Esth.  2:7).  These,  however, 
are  all  exceptional  cases.  St.  Paul,  no  less  than  five  times,  uses  the  term 
adoption  in  his  epistles,  to  denote  the  privilege  of  sonship,  bestowed  by 
our  Heavenly  Father  upon  His  children.  It  is  quite  uncertain  whether 
he  bases  his  figure  upon  Hebrew  or  Gentile  practice.  In  the  absence  of 
data,  we  may  conclude  that  the  Babylonians  possessed  more  legislation 
concerning  adoption  than  did  the  Israelites. 


186 

If  a  man  adopt  a  child  as  his  son,  and  after  he  has  taken  him,  he 
transgress  against  his  foster-father ;  that  adopted  son  shall  return 
to  the  house  of  his  own  father. 

The  above  differs  from  both  Johns  and  Harper.  Johns  renders  the 
second  clause:   ."when  he  took  him,  his  father  and  mother  rebelled." 


187 

The  son  of  a  Ner-se-ga  in  the  palace  service,  or  the  son  of  a  pros- 
titute can  not  be  demanded  back. 

It  is  quite  uncertain  what  the  term  Ner-se-ga  means,  but  probably  is 
the  appellation  given  to  some  officer  connected  with  the  royal  palace. 


188 

If  an  artisan  adopt  a  child  and  teach  him  his  trade,  no  one  can 
demand  him  back. 

189 

If  he  have  not  taught  him  a  trade,  the  adopted  child  may  return 
to  his  father's  house. 


Chap.  XIV.]  THE   CODE   OF   HAMMURABI  427 

190 

If  a  man  do  not  treat  as  one  of  his  own  sons  the  child  whom  he 
has  adopted  as  a  son  and  reared,  that  adopted  son  may  return  to  his 
father's  house. 

191 

If  a  man,  who  has  adopted  a  son  and  brought  him  up,  found  his 
own  house,  and  have  children  after  the  adoption  of  the  former,  and 
set  his  face  to  thrust  out  the  adopted  son,  that  son  shall  not  simply 
go  his  way,  his  foster-father  shall  give  him  one-third  the  share  of  a 
son,  then  he  may  go.  He  shall  not  give  him  of  the  field,  garden,  or 
house. 

192 

If  the  son  of  a  Ner-se-ga,  or  a  sacred  prostitute,  say  to  a  foster 
father  or  mother,  ''Thou  art  not  my  father,"  *'Thou  art  not  my 
mother,"  one  shall  cut  out  his  tongue. 

193 

If  the  son  of  a  Ner-se-ga,  or  a  sacred  prostitute,  long  for  his 
father's  house,  and  run  away  from  his  foster-father  and  foster- 
mother  and  go  back  to  his  father's  house,  one  shall  pluck  out  his 
eye. 

Instead  of  "run  away,"  both  Harper  and  Johns  have  "hate[d]  the 
father  that  brought  him  up."  The  putting  out  of  an  eye  was  not  known 
in  Israel  as  the  penalty  for  violating  any  law,  but  rather  as  retaliation, 
*'  eye  for  an  eye."     (See  Num.  16 :  14 ;  Judg.  16 :  41 ;  2  Kings  25  :  7.) 

194 

If  a  man  give  his  child  to  a  wet  nurse,  and  that  child  die  on  her 
hands,  and  the  wet  nurse,  without  the  knowledge  of  the  father  and 
the  mother,  substitute  another  child,  one  shall  charge  her  with 
having  nursed  another  child,  and  because  she  procured  another 
child  without  the  knowledge  of  father  or  mother,  one  shall  cut  off 
her  breast. 

195 

If  a  son  strike  his  father,  one  shall  cut  off  his  hands. 
The  Hebrew  law  was  still  more  severe : 

He  that  striketh  his  father  or  his  mother  shall  surely  be  put  to 

death.     (Ex.  21 :  15.) 

Even  the  cursing  of  a  parent  was  punishable  with  death.  (Ex.  21 :  17  ; 
Lev.  20 :  9.)     So  was  also  disobedience  and  rebellion.     (Deut.  21 :  18  ff.) 


438^  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

196 

If  a  man  destroy  the  eye  of  another  man,  one  shall  destroy  his  eye. 

Here  we  have  precisely  the  same  law  as  in  Israel,  the  well-known 
lex  talionis,  common  without  doubt  to  all  the  Semitic  peoples. 

Thou  shalt  give  Hfe  for  life,  eye  for  eye,  tooth  for  tooth,  hand 
for  hand,  foot  for  foot,  burning  for  burning,  wound  for  wound, 
strike  for  strike.  (Ex.  21 :  24,  25.  See  also  Lev.  24 :  20 ;  Deut. 
19:21.) 

We  see  the  extension  of  this  famous  law  in  many  indirect  ways :  The 
tongue  guilty  of  insolence  and  impudence  was  cut  off  (192) ;  the  breasts 
of  the  nurse  who  practiced  deception  were  cut,  so  that  she  could  deceive 
no  more  (194) ;  and  even  the  hands  of  the  unsuccessful  surgeon  were  cut 
off,  so  that  he  could  do  no  more  damage  in  his  profession  (218). 

197 
If  any  one  break  a  man's  bone,  one  shall  break  his  bone. 

198 

If  he  destroy  the  eye  of  a  freedman,  or  break  the  bones  of  a 
freedman,  he  shall  pay  one  mina  of  silver. 


199 

If  he  destroy  the  eye  of  a  man's  slave,  or  break  the  bone  of  a 
man's  slave,  he  shall  pay  one-half  his  value. 

Here  again  we  see  that  Hebrew  legislation  contrasted  most  favorably 
with  that  of  ancient  Babylonia,  where  the  slave  was  regarded  as  a  mere 
chattel  or  piece  of  property,  and  not  as  a  man  deserving  consideration 
and  humane  treatment.  The  reader  can  not  but  notice  the  general  tone 
of  kindness  in  the  following  Hebrew  law : 

If  a  man  smite  the  eye  of  his  servant  or  the  eye  of  his  maid,  and 
destroy  it,  he  shall  let  him  go  free  for  his  eye's  sake ;  if  he  smite  out 
his  man  servant's  tooth,  he  shall  let  him  go  free  for  his  tooth's  sake. 
(Ex.  21 :  26  f.) 

Such  a  law  as  the  above  would  make  the  master  exceedingly  careful 
In  the  treatment  of  his  slave. 

200 

If  a  man  knock  out  the  teeth  of  a  man  who  is  his  equal  in  rank, 
one  shall  knock  out  his  teeth. 

See  above  notes  under  196. 


Chap.  XIV.]  THE  CODE  OF  HAMMURABI  ^429 

201 

If  he  knock  out  the  teeth  of  a  freedman,  he  shall  pay  one-third 
mina  of  silver. 

202 

If  a  man  strike  a  man  of  higher  rank  than  himself,  one  shall 
give  him  sixty  strokes  with  a  cowhide  whip  in  public. 

It  seems  that  public  whipping  was  practiced  in  Israel  too,  as  in  the 
case  of  the  husband  who  falsely  accused  his  wife  or  betrothed  of  unchastity . 
(Deut.  22 :  18.)  Some  kind  of  fornication  was  likewise  punished  with 
public  whipping.     (Lev.  19  :  20.) 

203 

If  a  free-born  man  strikes  a  man  of  his  own  rank,  he  shall  pay 
one  mina  of  silver. 

204 

If  a  freeman  strike  a  freeman,  he  shall  pay  ten  shekels  of  silver^ 

205 

If  the  slave  of  a  freeman  strike  a  freeman,  one  shall  cut  off 
his  ear. 

206 

If  one  man  strike  another  in  a  quarrel  and  wound  him,  he  shall 
swear,  *'I  did  not  strike  him  intentionally,"  and  he  shall  pay  the 
physician. 

There  is  a  great  similarity  between  the  above  law  and  the  Mosaic 
legislation  on  the  same  subject.     The  Hebrew  law  reads  : 

If  men  strive  together  and  one  smite  another  with  a  stone  or 
with  his  fist,  and  he  die  not,  but  he  keepeth  his  bed,  if  he  rise  again 
and  walk  about  upon  his  staff,  then  shall  he  that  smote  him  be 
quit;  only  he  shall  pay  for  the  loss  of  his  time,  and  shall  cause 
him  to  be  thoroughly  healed.     (Ex.  21 :  18  f.) 

The  above  section  and  several  of  the  following  ones  relate  to  physicians 
and  the  fees  paid  them.  We  have  no  direct  parallels  in  the  Hebrew  law, 
though  there  can  be  no  doubt  that  Israel,  too,  had  a  class  of  men  who 
practiced  the  healing  art.  This  is  clearly  implied  from  the  language  of 
the  law  quoted  above,  for  the  clause,  "he  shall  cause  him  to  be  thoroughly 
healed,"  can  have  no  other  meaning  than  that  the  smiter  is  responsible 
for  the  surgeon's  bill  in  full.  We  read  in  2  Chron.  16:  12,  that  Asa, 
who  was  troubled  with  some  disease  of  the  feet,  sought  not  to  Jehovah, 
but  to  physicians.  Some  diseases,  like  leprosy,  were  healed  by  the  priest. 
In  our  Savior's  time  physicians  must  have  been  numerous.  (See  Luke 
8:43.) 


430  ANCIENT  AND  PRIMITIVE   LAWS  AND   CODES  [Pabt  III. 

207 

If  the  man  die  of  his  wounds,  he  shall  likewise  swear,  and  if  he 
[the  victim]  be  a  free-born  man,  he  shall  pay  one-half  mina  of  silver. 

The  Hebrew  law  inflicted  the  extreme  penalty,  which  goes  to  show  the 
high  regard  in  which  human  life  was  held  by  the  Hebrews.     The  law  reads  : 

He  that  smiteth  a  man  so  that  he  die,  shall  surely  be  put  to 
death.     (Ex.  21 :  12.) 

208 

If  he  be  a  freedman,  he  shall  pay  one-third  mina  of  silver. 

The  Hebrew  law  concerning  the  killing  of  servants  was  as  follows : 

And  if  the  man  smite  his  servant,  or  his  maid,  with  a  rod,  and 
he  die  under  his  hand,  he  shall  surely  be  punished.     (Ex.  21 :  20.) 

209 

If  a  man  strike  a  free-born  woman,  and  produce  a  miscarriage, 
he  shall  pay  ten  shekels  of  silver  for  the  loss  [of  that  in  her  womb]. 

The  Hebrews,  too,  had  their  law  for  such  a  case.     It  reads : 

If  men  strive,  and  hurt  a  woman  with  child,  so  that  the  fruit 
depart  from  her,  and  yet  no  mischief  follow,  he  shall  be  surely 
punished,  according  as  the  woman's  husband  will  lay  upon  him, 
and  he  shall  pay  as  the  judge  determine.      (Ex.  21 :  22.) 

210 

If  that  woman  die,  one  shall  put  his  daughter  to  death. 

This  is  an  extreme  application  of  the  lex  talionis :  daughter  for  daughter. 
The  Hebrew  law  also  inflicted  the  death  penalty,  but  not  on  the  innocent 
child  of  the  perpetrator,  but  direct  on  the  guilty  himself.  The  Hebrew 
law  reads : 

And  if  any  mischief  follow,  then  thou  shalt  give  life  for  life,  etc. 
(Ex.  21 :  23  f.) 

211 

If  a  free-born  woman  suffer  miscarriage  on  account  of  having 
been  struck  by  a  man,  he  shall  pay  five  shekels  of  silver. 

212 
If  that  woman  die,  he  shall  pay  one-half  mina  of  silver. 


Chap.  XIV.]  THE   CODE   OF   HAMMURABI  431 

213 

If  a  man  strike  the  maid-servant  of  a  freeman,  and  thus  produce 
a  miscarriage,  he  shall  pay  two  shekels  of  silver. 

214 

If  that  maid-servant  die,  he  shall  pay  one-third  mina  of  silver. 

The  reader  can  not  but  be  impressed  with  the  scale  of  damages  in  the 
above  cases,  everything  depending  upon  the  rank  of  the  woman  injured 
or  killed.  We  notice  the  same  thing  in  the  next  few  sections,  which  re- 
late to  the  pay  awarded  physicians  in  successful  cases,  and  the  fines  im- 
posed when  the  operations  were  not  successful.     (See  also  251  ff.) 


215 

If  a  physician  treat  a  man  for  a  severe  wound  with  a  bronze 
knife  and  heal  the  man,  or  if  he  open  an  abscess  [near  the  eye]  with 
a  bronze  knife,  and  save  the  eye,  he  shall  receive  ten  shekels  of 
silver. 

The  exact  nature  of  these  operations  can  only  be  guessed  at.  Cook 
suggests  that  the  word  na-gab-ti,  translated  abscess  by  both  Johns  and 
Harper,  should  be  rendered  film;    i.e.,  cataract. 


216 
If  he  (the  patient)  be  a  freedman,  he  shall  receive  five  shekels. 

217 

If  it  be  a  man's  slave,  his  owner  shall  pay  the  physician  two 
shekels  of  silver. 

218 

If  a  physician  treat  a  man  for  a  severe  wound  with  a  bronze 
knife  and  kill  him,  or  if  he  open  an  abscess  [near  the  eye]  and  de- 
stroy the  eye,  one  shall  cut  off  his  hands. 

One  peculiar  offense  was  punished  by  the  Hebrews,  too,  by  cutting  off 
the  hand.     (See  Deut.  25  :  11  f.) 

219 

If  a  physician  treat  the  slave  of  a  freeman  for  a  severe  wound  with 
a  bronze  knife,  and  kill  him,  he  must  replace  the  slave  with  an- 
other [of  course  of  equal  value]. 


432  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Pabt  III. 

220 

If  he  open  an  abscess  [near  the  eye]  with  a  bronze  knife,  and 
destroy  the  eye,  he  shall  pay  one-half  what  the  slave  was  worth. 

221 

If  a  physician  heal  the  broken  limb  of  a  man,  or  cure  his  diseased 
bowels,  the  patient  shall  pay  five  shekels  of  silver. 

The  Assyrian  word  rendered  "diseased  bowels"  in  the  above  section, 
means,  according  to  Winckler,  soft  parts  of  the  body  as  distinguished 
from  bones. 

222 
If  he  be  a  freedman,  he  shall  pay  three  shekels  of  silver. 

223 

If  he  be  a  slave,  his  owner  shall  pay  the  physician  two  shekels  of 
silver. 

224 

If  a  cow-doctor  or  an  ass-doctor  treat  a  cow  or  an  ass  for  a  severe 
wound,  and  cure  the  animal,  the  owner  shall  pay  the  doctor  one- 
sixth  of  a  shekel  of  silver  as  fee. 

225 

If  he  treat  a  cow  or  ass  for  a  severe  wound,  and  kill  it,  he  shall 
pay  the  owner  one-fourth  its  value. 

226 

If  a  brander,  without  the  knowledge  of  the  owner  of  a  slave, 
brand  a  slave  with  the  mark  of  a  slave,  who  can  not  be  sold,  the 
hands  of  that  brander  shall  be  cut  off. 

Winckler  renders  gallabum  barber,  or  shearer.  The  Hebrew  word 
gallab  is  also  translated  barber.  It  is  possible  that  barbers  practiced 
surgery  on  a  small  scale,  as  they  do  to  this  day  in  Bible  lands. 

227 

If  a  man  deceive  a  brander  and  cause  him  to  brand  a  slave  with 
the  mark  of  a  slave  who  can  not  be  sold,  he  shall  be  put  to  death 
and  buried  in  his  own  house,  but  the  brander  shall  swear,  "I  did 
not  brand  him  wittingly;"  then  he  may  go  free. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  433 


228 


I 

m    If  a  builder  build  a  house  for  any  one  and  finish  it,  he  shall  be 
r  paid  two  shekels  of  silver  for  each  sar  of  surface. 

A  sar,  according  to  the  best  authorities,  was  about  eighteen  square 
yards. 

229 

If  a  builder  build  a  house  for  any  one  and  do  not  build  it  solid ; 
and  the  house,  which  he  has  built,  fall  down  and  kill  the  owner ; 
one  shall  put  that  builder  to  death. 

Hebrew  legislation  offers  no  exact  parallel,  though  the  following  be- 
longs to  the  same  class  of  laws : 

When  thou  buildest  a  new  house,  then  shalt  thou  make  a  battle- 
ment for  thy  roof,  that  thou  bring  not  blood  upon  thy  house,  if 
any  man  fall  from  thence.     (Deut.  22  :  8.) 

A  prohibition  of  similar  import  is  found  in  Ex.  22 :  33  f. 


230 

If  it  kill  a  son  of  the  owner  of  the  house,  one  shall  put  to  death  the 
son  of  the  builder. 

A  literal  execution  of  the  lex  talionis,  son  for  son.  (See  remarks 
under  116.) 

231 

If  it  kill  a  slave  of  the  owner  of  the  house,  he  shall  give  the  owner 
of  that  house  another  slave. 

232 

If  it  destroy  any  property,  he  shall  compensate  for  all  that  it 
destroyed,  and  because  he  did  not  build  the  house  solid,  and  be- 
cause it  fell  down,  he  shall  rebuild  the  house  from  his  own  goods 
[i.e.,  at  his  own  expense]. 

233 

If  a  builder  build  a  house  for  any  one,  and  have  not  entirely 
completed  the  work ;  if  the  wall  become  rickety,  the  builder  shall 
strengthen  that  wall  at  his  own  expense. 

Harper  renders  the  second  clause:  "and  do  not  make  its  construc- 
tion meet  the  requirements,  and  a  wall  fall  in." 


434  ANCIENT  AND   PRIMITIVE   LAWS   AND   CODES  [Pabt  III. 

234 

If  a  boat-builder  build  a  boat  of  sixty  gur  for  any  one,  he  shall 
pay  him  two  shekels  of  silver  as  pay. 

Johns's  rendering  is  very  different :  "If  a  boatman  has  navigated  a 
ship,"  etc.  A  gur  is  supposed  to  have  been  about  five  hundred  pounds, 
or  a  little  over  eight  bushels. 

235 

If  a  boat-builder  build  a  boat  for  a  man,  and  do  not  make  it 
tight  [seaworthy] ;  if  in  that  same  year  the  boat  be  sent  on  a  trip, 
and  be  damaged,  the  boat-builder  shall  rebuild  that  boat,  and  make 
it  strong  at  his  own  expense,  he  shall  give  the  reconstructed  boat 
to  the  owner. 

236 

If  a  man  let  his  boat  to  a  boatman,  and  the  boatman  act  care- 
lessly, and  wreck  or  sink  that  boat,  the  boatman  shall  give  the 
owner  of  the  boat  another  one  as  compensation. 

237 

If  a  man  hire  a  boatman  and  his  boat  and  load  it  with  grain, 
clothing  [wool?],  oil,  dates,  or  any  freight  whatever;  if  that  boat- 
man be  careless  and  wreck  that  boat,  and  lose  the  cargo,  the  boat- 
man, who  wrecked  that  boat  and  lost  the  cargo,  shall  replace  the 
boat,  and  all  the  cargo  he  caused  to  be  lost. 

238 

If  a  boatman  wreck  another  man's  boat,  but  refloat  it,  he  shall 
pay  the  half  of  its  value  in  silver. 

239 

If  a  man  hire  a  boatman,  he  shall  pay  him  six  gur  of  grain  per 
year. 

Six  GUR  would  be  about  fifty  bushels.  Thus  the  payment  for  such 
services  would  be  about  one  bushel  a  week,  or  at  present  price  of  wheat, 
one  dollar,  about  fifteen  cents  a  day,  counting  holidays. 

240 

If  a  boat  run  against  another  boat  at  anchor  and  sink  it,  the 
owner  of  the  sunken  boat  shall  declare  before  God  [in  open  court] 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  435 

the  extent  of  his  loss ;  the  owner  of  the  boat  which  ran  down  the 
one  at  anchor  shall  make  reparation  for  the  boat  and  all  that  was 
lost. 

It  is  impossible  to  say  whether  boats  of  different  sizes  are  intended. 
It  seems,  however,  from  275  and  276,  where  the  same  terms  are  employed, 
that  one  boat  was  larger  than  the  other.  At  any  rate  the  hire  or  rent 
paid  for  their  use  differed  quite  a  little.     (See  these  sections.) 

241 

If  a  man  take  an  ox  on  distraint,  he  shall  pay  one-third  mina  of 
silver. 

Winckler  reads  :  "If  a  man  take  an  ox  for  forced  labor."  The  refer- 
ence is  to  the  custom  of  mortgaging,  or  rather  of  foreclosing  a  mortgage, 
for  debt.  To  take  a  poor  man's  ox,  would  be  to  rob  him  of  the  very  thing 
which  enabled  him  to  make  a  living  so  as  to  support  himself  and  family. 
There  is  a  passage  in  Job  which  recalls  this  barbarous  custom : 

They  drive  away  the  ass  of  the  fatherless,  they  take  the  widow's 
ox  for  a  pledge.     (Job  24 :  3.) 

It  was  forbidden  by  Hebrew  law  for  a  creditor  to  take  the  garment 
of  a  poor  man  over  night,  or  to  take  the  little  hand-mill  which  was  daily 
used  for  grinding  corn.  (Deut.  24:6,  12  ff.)  The  necessity  for  such 
legislation  becomes  evident  on  reading  passages  like  Job  22 :  6 ;  Prov. 
22  :  27,  and  Amos  2  :  8. 

242 

If  a  man  hire  [an  ox]  for  one  year,  he  shall  pay  the  owner  four 
GUR  of  grain  for  a  working  ox. 

243 

As  pay  for  an  ox  of  the  herd,  he  shall  pay  three  gur  of  grain. 

This  section  is  a  puzzle.'  Johns  renders:  "If  a  milch-cow  he  shall 
give  three  gur  of  corn  to  its  owner."     Harper  has  **ox(?)." 

244 

If  a  man  hire  an  ox  or  an  ass,  and  a  lion  kill  it  in  the  field,  the 
owner  shall  bear  the  loss. 

We  have  the  following  parallel  in  Ex .  22 :  13. 

If  it  [a  beast]  be  torn  in  pieces,  let  him  bring  it  for  a  witness  :  he 
shall  not  make  good  that  which  was  torn. 


245 

If  a  man  hire  an  ox  and  by  neglect,  or  bad  treatment,  kill  it,  he 
shall  give  its  owner  another  ox  of  like  value  in  its  place. 


436  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

The  Hebrew  law  offers  an  almost  exact  parallel  to  Sections  245-249. 
It  reads : 

And  if  a  man  borrow  aught  of  his  neighbor,  and  it  be  hurt,  or 
die,  the  owner  thereof  not  being  with  it,  he  shall  surely  make 
restitution.  If  the  owner  thereof  be  with  it,  he  shall  not  make  it 
good ;  if  it  be  an  hired  thing,  it  came  for  its  hire.  (Ex.  22  :  14  f . 
See  263.) 

246 

If  a  man  hire  an  ox,  and  he  break  its  leg  or  cut  off  the  muscles  of 
its  neck  [ham-string,  Harper],  he  shall  give  its  owner  an  ox  of  like 
value  in  its  place. 

247 

If  a  man  hire  an  ox  and  destroy  its  eye,  he  shall  pay  its  owner 
one-half  of  its  value. 

248 

If  a  man  hire  an  ox  and  break  off  its  horn,  or  cut  off  its  tail,  or 
injure  its  nostrils,  he  shall  pay  one-quarter  of  its  value. 

249 

If  a  man  hire  an  ox,  and  a  god  strike  it,  and  it  die,  the  man  who 
hired  it  shall  swear  before  God  [in  open  court]  and  he  shall  be 
acquitted. 

See  note  under  244. 

250 

If  an  ox,  while  passing  through  the  streets  [market],  gore  and 
kill  a  man,  this  case  is  not  subject  to  litigation. 

The  Hebrew  is  more  severe.     It  runs  thus  : 

And  if  an  ox  gore  a  man  or  a  woman,  that  they  die,  the  ox  shall 
be  surely  stoned,  and  its  flesh  shall  not  be  eaten ;  but  the  owner  of 
the  ox  shall  be  quit.     (Ex.  21 :  28.) 


251 

If  a  man's  ox  were  known  to  gore,  and  he  had  been  notified  that 
it  was  a  gorer,  and  he  have  not  wound  up  its  horns,  and  have  not 
shut  it  up,  and  the  ox  gore  a  free-born  man,  and  kill  him,  he  shall 
pay  one-half  mina  of  silver. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  437 

The  Hebrew  law  is  much  more  severe,  showing  clearly  that  a  higher 
value  was  set  upon  life  in  Israel  than  in  Babylonia.     We  read  : 

But  if  the  ox  were  wont  to  gore  in  time  past,  and  it  hath  been 
testified  to  its  owner,  and  he  hath  not  kept  him  in,  but  that  he  hath 
killed  a  man  or  a  woman  :  the  ox  shall  be  stoned  and  his  owner  also 
shall  be  put  to  death.     (Ex.  21 :  29.) 

252 

If  it  kill  the  slave  of  a  man,  he  [the  owner]  shall  pay  one-third 
mina  of  silver. 

The  penalty  or  fine,  unless  the  price  of  silver  varied,  was  considerably 
higher  in  Israel.     The  Hebrew  reads  thus  : 

If  the  ox  gore  a  man-servant  or  a  maid-servant ;  he  shall  give 
unto  their  master  thirty  shekels  of  silver,  and  the  ox  shall  be 
stoned.     (Ex.  21 :  32.) 

Notice  the  last  clause  especially. 

253 

If  a  man  hire  a  man  to  tend  his  field  [farm],  furnish  him  seed, 
intrust  him  with  oxen,  and  engage  him  to  cultivate  the  field ;  if 
he  steal  grain  or  plants,  and  they  be  found  in  his  hands,  one  shall 
cut  off  his  hands. 

254 

If  he  take  the  seed-grain,  and  do  not  work  the  oxen,  he  shall 
replace  the  quantity  of  grain  received  for  sowing. 

We  have  given  Winckler's  translation.  Both  Harper  and  Johns  give 
a  very  different  rendering.  The  former  has:  "If  he  take  the  seed-grain 
and  overwork  the  oxen,  he  shall  restore  the  quantity  of  grain  which  he  has 
hoed."  Johns  has :  "If  he  has  taken  the  seed,  worn  out  the  oxen,  from 
the  seed  which  he  has  hoed  he  shall  restore." 

255 

If  he  sublet  the  oxen  of  the  man,  or  steal  the  seed-grain,  and  do 
not  cultivate  the  field,  he  shall  be  indicted,  and  shall  pay  sixty 
GUR  of  grain  per  ten  gan. 

Winckler  has  :   "for  one  hundred  gan  he  shall  pay  sixty  gur  of  grain." 

256 

If  his  community  be  not  able  to  pay  for  him,  he  shall  be  left 
with  the  cattle  on  the  field. 


438  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

Both  Harper  and  Johns  render  the  above  differently.  We  subjoin 
Harper's  translation :  "If  he  be  not  able  to  meet  his  obligation,  they  shall 
leave  him  in  that  field  with  the  cattle."  Winckler,  in  a  note,  says  that 
the  community  was  responsible  for  the  individual.  The  section  is  very 
obscure. 

257 

If  a  man  hire  a  field-laborer,  he  shall  pay  eight  gur  of  grain  per 
year. 

258 

If  a  man  hire  an  ox-driver,  he  shall  pay  him  six  gur  of  grain  a 
year. 

259 

If  a  man  steal  a  water-wheel  [a  machine  for  irrigation],  from  a 
field,  he  shall  pay  the  owner  five  shekels  of  silver. 

260 

If  he  steal  a  watering-bucket  or  a  plow,  he  shall  pay  three  shekels 
of  silver. 

261 

If  a  man  hire  a  shepherd  to  pasture  cattle  or  sheep,  he  shall 
pay  him  eight  gur  of  grain  a  year. 


262 

If  a  man,  an  ox  or  a  sheep  to  .  .  .  [the  inscription  is  defective 
here  and  can  not  be  read]. 

263 

If  he  lose  an  ox  or  sheep  intrusted  to  him,  he  shall  compensate 
the  owner,  ox  for  ox,  sheep  for  sheep. 

We  have  the  following  in  Hebrew  legislation : 

If  a  man  deliver  unto  his  neighbor  an  ass,  or  an  ox,  or  a  sheep, 
or  any  beast  to  keep ;  and  it  die,  or  be  hurt,  or  driven  away,  no 
man  seeing  it,  the  oath  of  the  Lord  shall  be  between  them  both, 
whether  he  hath  not  put  his  hand  unto  his  neighbor's  goods ;  and 
the  owner  thereof  shall  accept  it,  and  he  shall  not  make  restitution. 
But  if  it  be  stolen  from  him,  he  shall  make  restitution  unto  the 
owner  thereof.  If  it  be  torn  in  pieces,  let  him  bring  it  for  witness ; 
he  shall  not  make  good  that  which  was  torn.     And  if  a  man  borrow 


Chap.  XIV.]  THE  CODE  OF  HAMMURABI  439 

aught  of  his  neighbor,  and  it  be  hurt,  or  die,  the  owner  thereof  not 
being  with  it,  he  shall  surely  make  restitution.  If  the  owner 
thereof  be  with  it,  he  shall  not  make  it  good ;  if  it  be  an  hired  thing, 
it  came  for  its  hire.     (Ex.  22  :  10-15.) 

264 

If  a  shepherd  to  whose  care  cattle  or  sheep  have  been  intrusted, 
who  received  his  wages  according  to  the  stipulated  pay,  allow  the 
number  of  cattle  or  sheep  to  decrease,  or  lessen  the  increase  by 
birth,  he  shall  make  good  the  increase  and  produce  according  to  the 
wording  of  his  contract. 

265 

If  a  shepherd  to  whom  cows  and  sheep  have  been  given  to  pas- 
ture act  fraudulently,  or  make  false  returns  regarding  the  increase, 
or  sell  them  for  money,  he  shall  be  indicted,  and  shall  render  to 
their  owner  oxen  and  sheep  tenfold  for  what  he  has  stolen. 

Hebrew  legislation  offers  the  following  parallel : 

If  a  man  shall  steal  an  ox,  or  a  sheep,  and  kill  it,  or  sell  it ;  he 
shall  pay  five  oxen  for  an  ox  and  four  sheep  for  a  sheep.  ...  If 
the  theft  be  found  in  his  hand  alive,  whether  it  be  ox,  or  ass,  or 
sheep ;  he  shall  pay  double.     (Ex.  22  :  1  and  4.) 

In  case  the  thief  had  nothing  wherewith  to  pay,  he  might  be  made 
a  slave.     (See  Gen.  44 :  17.) 

266 

If  a  stroke  of  God  [any  accident]  happen  in  a  stable,  or  a  lion 
kill  it  [any  beast],  the  shepherd  shall  declare  his  innocence  before 
God,  and  the  owner  of  the  stable  shall  suffer  the  loss. 

267 

If  a  shepherd  overlook  anything,  and  an  accident  take  place 
in  a  stable,  the  shepherd  shall  make  good  in  cattle  or  sheep  the 
damage  for  which  he  is  at  fault,  and  give  to  the  owner. 

Nearly  the  same  law  is  enforced  among  the  Bedouins  to  this  day. 
(See  Ex.  22 :  12,  and  remarks  under  263  and  265.) 

268 
If  a  man  hire  an  ox  to  thresh,  the  pay  is  twenty  ka  of  grain. 


440  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

269 

If  a  man  hire  an  ass  to  thresh,  the  pay  is  twenty  ka  of  grain. 
Both  Harper  and  Johns  have  ten  ka  for  twenty. 

270 

If  a  man  hire  a  young  animal  to  thresh,  the  pay  is  ten  ka  of  grain. 

Lalu,  rendered  young  animal  in  this  section,  may  be  a  young  calf  or 
goat.     Both  Harper  and  Johns  have  one  ka  for  ten. 

271 

If  a  man  hire  oxen,  cart  and  driver,  he  shall  pay  one  hundred  and 
eighty  ka  of  grain  a  day. 

272 

If  a  man  hire  a  cart  only,  he  shall  pay  forty  ka  of  grain  a  day. 

273 

If  a  man  hire  a  laborer  from  new  year  to  the  fifth  month  [April  to 
August],  he  shall  pay  six  se  of  silver  a  day ;  from  the  sixth  month 
to  the  end  of  the  year  [September  to  April]  he  shall  pay  five  se  of 
silver  a  day. 

The  stele  is  so  mutilated  here  that  it  is  not  possible  to  read  the  inscrip- 
tion with  any  degree  of  accuracy.  We  subjoin  the  section  as  given  by 
Johns : 

274 
If  a  man  shall  hire  an  artisan,  — 

(a)  the  hire  of  a ,  five  se  of  silver, 

(b)  the  hire  of  a  brickmaker,  five  se  of  silver, 

(c)  the  hire  of  a  tailor,  five  se  of  silver, 

(d)  the  hire  of  a  stone-cutter, se  of  silver, 

(e)  the  hire  of  a , se  of  silver, 

(f)  the  hire  of  a , se  of  silver, 

(g)  the  hire  of  a  carpenter,  four  se  of  silver, 
(h)  the  hire  of  a ,  four  se  of  silver, 

(i)  the  hire  of  a , se  of  silver, 

(j)  the  hire  of  a  builder, se  of  silver,  —  per  diem  he 

shall  give. 


Chap.  XIV.]  THE   CODE   OF  HAMMURABI  441 

Here  Johns  enumerates  five  kinds  of  mechanics,  or  just  one-half  what 
was  on  the  stele  when  first  written.  Harper  gives  four,  and  omits  six. 
Enough,  however,  is  given  to  show  that  skilled  mechanics  received  be- 
tween four  and  five  se  per  day.  There  were  180  se  in  a  shekel :  thus 
five  SE  would  be  ^  of  a  shekel.  If  a  shekel  was  equal  to  about  sixty-five 
cents  in  our  money,  it  will  be  seen  that  wages  were  excessively  low ;  and 
yet  the  intrinsic  value  of  the  money  must  be  distinguished  from  its  pur- 
chasing power.  Thus,  if  the  wages  of  a  mechanic  were  not  quite  two  cents 
a  day,  no  doubt  wheat  and  other  products  were  sold  at  very  low  prices. 


275 

If  a  man  hire  a ,  its  hire  shall  be  three  se  of  silver  a  day. 

Owing  to  the  mutilated  condition  of  the  text,  the  exact  kind  of  boat 
can  only  be  a  matter  of  conjecture. 

276 

If  a  man  hire  a  row-boat,  he  shall  pay  two  and  a  half  se  of  silver 
per  day. 

Here  again  the  kind  of  boat  is  very  uncertain.  Both  Scheil  and  Johns 
have  "a  fast  ship";  Harper  has  "sail-boat."     (See  remarks  under  240.) 

277 

If  a  man  hire  a  boat  of  sixty  gur,  he  shall  pay  one-sixth  shekel 
per  day  as  its  hire. 

278 

If  a  man  buy  a  male  slave  or  a  female  slave,  and,  before  a  month 
has  elapsed,  the  slave  be  attacked  by  the  bennu  sickness,  he  shall 
bring  back  the  slave  to  the  seller,  and  the  buyer  shall  get  back  the 
money  he  paid. 

The  word  bennu  has  puzzled  translators.  Scheil  suggests  paralysis. 
Harper  has  "bennu  fever." 

279 

If  a  man  buy  a  male  slave  or  a  female  slave,  and  another  claim 
the  same,  the  seller  has  to  satisfy  the  claim. 

280 

If  a  man  buy  in  a  foreign  country  a  male  slave  or  a  female  slave, 
and  he  return  to  his  own  land,  and  the  former  owner  of  this  male 
slave  or  female  slave  recognize  the  same,  if  the  male  slave  or  female 


4/ 


442  ANCIENT   ANET PRIMITIVE   LAWS  AND   CODES  [Part  III. 

slave  be  a  native  of  the  country,  he  shall  give  them  back  without 
compensation  in  money. 

Both  Harper  and  Johns  translate  the  last  clause  quite  differently : 
**He  shall  grant  them  their  freedom  without  money  (price)." 

281 

If  they  be  natives  of  another  country,  the  buyer  shall  declare 
before  God  [in  open  court]  the  sum  of  money  he  paid  for  them,  and 
the  former  owner  of  the  male  slave  or  female  slave  shall  give  to  the 
merchant  the  money  paid  for  them,  and  he  [the  former  owner] 
shall  recover  his  male  or  his  female  slave. 

282 

If  a  slave  say  to  his  master,  "Thou  art  not  my  master,''  if  his 
master  shall  prove  him  to  be  his  slave,  he  may  cut  off  his  ear. 


Chapter  XV 
THE   PENTATEUCH  1 

FIRST    BOOK 

Genesis  :  Chap.  II,  22-24.  —  The  making  of  woman  and  insti- 
tution of  marriage. 

Chap.  IV,  8-24. —  Murder  of  Abel.  Curse  of  Cain.  Cain 
builds  a  city.     Lameeh  takes  two  wives. 

Chap.  VI,  1-8.  —  Wickedness  of  the  world.  The  giants.  God 
repents  the  creation  of  man.     Noah  finds  grace. 

Chap.  IX,  1-7.  —  Blood  and  murder  forbidden. 

Chap.  XIV,  1-21.  —  Battle  of  the  kings  in  the  days  of  Amraphel 
(Hammurabi).  Lot  is  taken  prisoner,  but  rescued  by  Abram. 
Melchizedek  blesses  Abram,  and  Abram  gives  him  tithe. 

Chap.  XVI,  1-6.  —  Sarai  gives  Hagar  to  Abram. 

Chap.  XXIII,  3-20.  —  Abraham  purchases  from  the  sons  of 
Heth  a  burying-place. 

Chap.  XXIV,  1-4,  9-12,  15,  17-19,  22,  29-33,  35-45,  50-54, 
58-67.  —  Abraham  sends  his  eldest  servant  to  find  a  wife  for  his 
son  Isaac.     Rebekah  becomes  the  wife  of  Isaac. 

Chap.  XXV,  20,  21,  24-34.  —  Birth  of  Esau  and  Jacob.  Esau 
sells  his  birthright  to  Jacob. 

Chap.  XXVI,  34,  35.  —  Jacob  obtains  the  blessing  of  Isaac. 
Esau  threatens  Jacob.  Rebekah  sends  Jacob  to  her  brother 
Laban. 

Chap.  XXVIII,  1,  2,  9-10.  —  Esau  takes  another  wife. 

^  [The  Bible  is  so  much  a  household  book  that  it  was  not  deemed  necessary 
to  reprint  from  it  in  this  volume,  even  the  strictly  juridical  selections. 
The  above  references  are  offered  only  as  suggestive  of  the  principal  passages 
of  the  Pentateuch  having  a  direct  bearing  on  the  then  development  of  legal 
institutions.  See,  also,  the  Code  of  Hammurabi,  Chapter  XIV,  supra,  and 
the  parallel  references  to  the  Bible  there  noted. 

Opinions  differ  on  the  authorship  and  dates  of  the  books  of  the  Pen- 
tateuch (originally  known  as  the  Hexateuch  as  combined  with  the  book 
of  Joshua) .  The  tradition  is  that  they  were  written  by  Moses  and  his  con- 
temporaries, about  the  middle  of  the  second  millennium,  b.c.  ;  but  it  is  now 
beHeved  that  these  books  are  a  composite  of  at  least  three  elements  and 
put  into  writing  at  different  times.  It  is  supposed  that  parts  of  the  Pen- 
tateuch were  composed  as  late  as  the  7th  century  b.c,  and  some  authorities 
contend  even  for  a  later  date  in  post-exihc  times.] 

443 


444  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

Chap.  XXIX,  1,  2,  10-30.  —  Jacob  serves  Laban  for  Leah 
and  Rachel. 

Chap.  XL VII,  13-27.  —  The  famine  in  Egypt.  Joseph  obtains 
all  the  land,  except  that  of  the  priests,  for  Pharaoh. 

SECOND    BOOK 

Exodus  :  Chap.  II,  1-21.  —  Birth  of  Moses.  He  kills  an  Egyp- 
tian and  is  compelled  to  flee  into  Midian,  where  he  marries  Zip- 
porah. 

Chap.  XII,  29-40,  43-45,  48-49.  —  The  first-born  of  Egypt  are 
slain.  The  Israelites  are  driven  out  of  Egypt.  The  ordinance 
of  the  Passover. 

Chap.  XVIII,  13-27.  —  Moses  sits  to  judge  the  people. 
Jethro's  counsel. 

Chap.  XX.  —  The  ten  commandments. 

Chap.  XXL  —  Laws  for  men-servants,  women-servants,  for 
murder  and  manslaughter,  for  men-stealers,  etc. 

Chap.  XXII.  —  Laws  of  theft,  damages,  trespass,  loans,  witch- 
craft, idolatry,  concerning  strangers,  widows,  etc. 

Chap.  XXIII.  —  Concerning  slander  and  false  witness,  justice, 
charity,  etc. 

THIRD    BOOK 

Leviticus  :  Chap.  V.  —  Atonements,  and  trespass  offerings. 
Chap.  VI.  —  Atonements  continued. 
Chap.  XL  —  What  beasts  may  and  may  not  be  eaten. 
Chap.  XIX.  —  Repetition  of  sundry  laws. 
Chap.  XXV.  —  The  jubilee  year.    Redemption  of  lands,  slaves, 
etc. 

FOURTH    BOOK 

Numbers  :  Chap.  I.  —  The  census  of  the  Israelites. 

Chap.  XXVI,  1,  2,  51-65.  —  The  census,  and  the  inheritance 
of  land. 

Chap.  XXVII,  1-11.  —  The  daughters  of  Zelophehad  sue  for 
an  inheritance.     The  law  of  inheritance. 

Chap.  XXX.  —  Vows  of  maidens,  wives,  widows,  and  divorced 
women. 

Chap.  XXXV,  6-34.  —  The  six  cities  of  refuge.  Laws  concern- 
ing murder. 

Chap.  XXXVI. — Concerning  inheritance  of  daughters.  Mar- 
riage within  the  tribe. 


Chap.  XV. 1  THE   PENTATEUCH  445 

FIFTH    BOOK 

Deuteronomy  :  Chap.  XV,  1-18.  —  The  seventh  year,  a  year 
of  release  of  debts  and  Hebrew  slaves. 

Chap.  XVI,  18-20.  —  Of  judges  and  justice. 

Chap.  XVII.  —  Settlement  of  controversies  by  the  priests. 
Election  of  a  king  and  his  duties. 

Chap.  XIX.  —  Cities  of  refuge.  Landmarks  not  to  be  removed. 
Witnesses. 

Chap.  XXL  —  Expiation  of  an  uncertain  murder.  Usage  of 
a  captive  wife.     The  first-born  not  to  be  disinherited. 

Chap.  XXIII,  15,  16,  19,  20,  24,  25.  —  Escaped  slaves.  Usury. 
Subsistence. 

Chap.  XXIV.  —  Concerning  divorce,  pledges,  man-stealers, 
justice,  etc. 

Chap.  XXV.  —  Punishment.  Raising  seed  to  a  brother. 
Unjust  weights,  etc. 


1 


Chapter  XVI 
EDICT  OF  HARMHABi 

I.  INTRODUCTION 

*  *  * 


•II.  INTRODUCTION:    THE    KING'S  ZEAL    FOR    THE    RELIEF 

OP  THE  PEOPLE 

2.   His  majesty  took  counsel  with  his  heart  [how  he  might] 

[exp]el  evil  and  suppress  lying.     The  plans  of  his  majesty  were 

an  excellent  refuge,  repelling  violence  behind [and  delivering 

the  Egyptians  from  the  oppressions]  which  were  among  them. 
Behold,  his  majesty  spent  the  whole  time  seeking  the  welfare  of 
Egypt  and  searching  out  instances  [of  oppression  in  the  land]. 

[came  the  scribe]  of  his  majesty.     Then  he  seized  palette  and 

roll ;  he  put  it  into  writing  according  to  all  that  his  majesty,  the 
king  himself  said.  He  spoke  as  follows :  "  [My  majesty]  com- 
mands   [concerning  all]  instances  of  oppression  in  the  land. 

1  [Reprinted  with  the  consent  of  the  publisher  from  "Ancient  Records 
of  Egypt"  (Vol.  iii,  p.  22  seq.),  by  James  H.  Breasted,  University  of 
Chicago  Press  (1906).]  This-  is  the  most  important  edict  [Nineteenth 
Dynasty,  about  1350-1315  b.c]  which  has  come  down  to  us  from  ancient 
Egypt,  and  it  is  much  to  be  regretted  that  its  very  fragmentary  state, 
together  with  the  execrable  manner  in  which  it  has  been  published,  has 
deprived  us  of  so  many  of  its  important  data. 

The  edict  contains  the  practical  legislation  of  Harmhab  by  means  of 
which  he  intended  to  prevent  the  oppressive  abuses  connected  with  the 
collection  of  taxes  from  the  common  people,  who  were  continually  robbed 
and  impoverished  by  the  fiscal  officers.  This  legislation  consists  of  a 
series  of  enactments,  each  of  the  following  form : 

(a)  Statement  of  the  abuse  as  it  existed  before  this  legislation  and  the 
king's  displeasure  at  it. 

(5)  Statement  of  a  hypothetical  commission  of  the  offense  by  the  offi- 
cials concerned. 

(c)  Declaration  of  the  penalty  to  be  inflicted. 

He  :((  *  4:  *  *  H( 

In  the  translation  it  has  been  necessary  to  indicate  the  connection 
between  the  beginnings  of  the  lines,  a  large  portion  of  the  ends  having 
been  lost.  These  connecting  insertions  contain  only  what  was  probably 
the  intervening  thought,  without  any  attempt  to  reproduce  the  lost  words. 
[Most  of  the  elaborate  typographical  marks  and  special  characters  of  the 
original  text  of  the  author  have  been  omitted  in  this  reprinting.  A  dash 
indicates  either  a  lacuna  or  an  uncertainty.]  —  Translator's  Note. 

446 


Chap.  XVI.]  EDICT   OF  HARMHAB  447 

III.  ENACTMENT  AGAINST    ROBBING    THE  POOR   OF    DUES 
FOR  THE  ROYAL  BREWERIES  AND  KITCHENS 

3.  If  the  poor  man  made  for  himself  a  craft  with  its  sail,  in 
order  to  be  able  to  serve  the  Pharaoh,  L.  P.  H.,  [loading  it  with 
the  dues  for  the  breweries  and  kitchens  of  the  Pharaoh,  and  he 
was  robbed  of  the  craft  and]  the  dues,  the  poor  man  stood  reft 
of  his  goods  and  stripped  of  his  many  labors.  [This  is  wrong,  and 
the  Pharaoh  will  suppress  it  by]  his  excellent  measures.  If  there 
be  a  [poor  man]  who  pays  the  dues  of  the  breweries  and  kitchens 
of  the  Pharaoh,  L.  P.  H.,  to  the  two  deputies,  [and  he  be  robbed 
of  his  goods  and  his  craft,  my  majesty  commands:  that  every 
officer  who  seizeth  the  dues]  and  taketh  the  craft  of  any  citizen 
of  the  army  or  of  any  person  who  is  in  the  whole  land,  the  law 
shall  be  executed  against  him,  in  that  his  nose  shall  be  cut  off, 
and  he  shall  be  sent  to  Tha[ru].^ 


IV.  AGAINST    ROBBING    THE    POOR    OF    WOOD    DUE    THE 

PHARAOH 

4.  [Furthermore,  concerning  the  impost  of  wood,  my  majesty 
commands  that  if  any  officer  find]  a  poor  man  without  a  craft, 
then  let  him  bring  to  him  a  craft  for  his  impost  from  another, 
and  let  him  send  him  to  bring  for  him  the  wood ;  thus  he  ^  shall 
serve  [the  Pharaoh]. 


V.  AGAINST  EXACTING  DUES  FROM  A  POOR  MAN  THUS 

ROBBED 

5.  [Furthermore,  my  majesty  commands  that  if  any  poor  man 
be  oppressed  by]  [robbe]ry,  his  cargo  be  emptied  by  theft  of  them, 
and  the  poor  man  stand  reft  of  hi[s  good]s,  [no  further  exactions 
for  dues  shall  be  made  from  him]  when  he  has  nothing.  For  it  is 
not  good,  this  report  of  very  great  injustice.  My  majesty  com- 
mands that  restitution  be  made  to  him ;   behold, 

1  This  is  a  remarkable  corroboration  of  Strabo,  who  mentions  Rhino- 
colura  as  "so  called  from  the  colonists,  whose  noses  had  been  mutilated. 
Some  Ethiopian  invaded  Egypt  and,  instead  of  putting  the  malefactors 
to  death,  cut  off  their  noses  and  settled  them  at  Rhinocolura  "  (XVI, 
II,  31 ;  translation  of  Hamilton  and  Falconer,  III,  176).  See  also  Herod- 
otus, II,  37,  and  Diodorus,  I,  60  and  65^  and  Miiller,  "Zeitschrift  fur 
agyptische  Sprache,"  I,  1888,  81. 

2  The  ambiguity  of  the  pronouns  is  also  in  the  original. 


448  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

VI.  AGAINST  ROBBING  THE  POOR  OF  DUES  FOR  THE 
HAREM  OR  THE  GODS  BY  THE  SOLDIERS 

6.  [Furthermore,  as  for  those  who] and  those  who  bring  to 

the  harem,  hkewise  for  the  offerings  of  all  gods,  paying  dues  to  the 

two  deputies  of  the  army  and [my  majesty  commands  that 

if  any  officer  is  guilty  of  extortions  or  thefts],  the  law  [shall  be 
executed]  against  him,  in  that  his  nose  shall  be  cut  off,  and  (he) 
shall  be  sent  to  Tharu  likewise. 

VII.  AGAINST  UNLAWFUL  APPROPRIATION  OF  SLAVE 

SERVICE 

7.  When  the  officers  of  the  Pharaoh's  house  of  offerings  have 
gone  about  tax-collecting  in  the  towns,  to  take  [katha-plant] 
[they  have  seized  the  slaves  of  the  people,  and  kept  them  at  work] 
for  6  days  or  7  days,  without  one's  being  able  to  depart  from  them 
afar,  so  that  it  was  an  excessive  detention  indeed.  It  shall  be 
done  likewise  against  them.  If  there  be  any  place  [where  the 
stewards  shall  be  tax-collecting,  and  any  one]  shall  hear,  saying : 
"  They  are  tax-collecting,  to  take  katha-plant  for  themselves," 
and  another  shall  come  to  report,  saying :  "  My  man  slave  (or) 
my  female  slave  has  been  taken  away  [and  detained  many  days 
at  work  by  the  stewards  " ;  it  shall  be  done  likewise  against  them]. 

VIII.  AGAINST  STEALING   OF  HIDES  BY  THE  SOLDIERS 

8.  The  two  divisions  of  troops  which  are  in  the  field,  one  in 
the  southern  region,  the  other  in  the  northern  region,  stole  hides 
in  the  whole  land,  not  passing  a  year,  without  applying  the  brand 
of  [the  royal  house  to  cattle  which  were  not  due  to  them,  thereby 
increasing]  their  number,  and  stealing  that  which  was  stamped 
from  them.     They  went  out  from  house  to  house,  beating  and 

plundering  without  leaving  a  hide  for  [the  people .     Then  the 

officer]  of  Pharaoh  went  about  to  each  one,  [to  collect  the  hides 
charged  against  him  and  came  to  the  people  demanding]  them, 
but  the  hides  were  not  found  with  them  (although)  the  amount 
charged  against  them  could  be  established.  They  satisfied  them, 
saying:  "They  have  been  stolen  from  us."  A  wretched  case  is 
this,  therefore  it  shall  be  [done]  Hkewise. 

9.  When  the  overseer  of  the  cattle  of  Pharaoh,  L.  P.  H.,  goes 
about  to  attend  to  the  loan-herds  in  the  whole  land,  and  there  be 
not  brought  to  him  the  hides  of  the which  are  on  the  lists, 


r 


Chap.  XVI.]  EDICT   OF  HARMHAB  449 

[he  shall  not  hold  the  people  responsible  for  the  hides  if  they  have 
them  not,  but  they  shall  be  released  by  command  of  his  majesty,] 
according  to  his  just  purposes.^  As  for  any  citizen  of  the  army, 
(concerning)  whom  one  shall  hear,  saying  :  "  He  goeth  about  steal- 
ing hides,"  beginning  with  this  day,  the  law  shall  be  executed  against 
him,  by  beating  him  a  hundred  blows,  opening  five  wounds,  and 
taking  from  him  by  force  the  hides  which  he  took. 

IX.  AGAINST  CONNIVANCE  OF  DISHONEST  INSPECTORS 
WITH  THIEVISH  TAX-COLLECTORS,  FOR  A  SHARE  OP 
THE  BOOTY 

10.  Now,  as  for  this  other  instance  of  evil  which  the  [official 
staff  were  accustomed  to  commit,  when  they  held  inspection]  in 
the  land,  of  that  which  happened  [against  the  law]  [the  table- 
scribe  of]  the  queen  and  the  table-scribe  of  the  harem  went  about 
after  the  official  staff,  punishing  them  and  investigating  the 
affair of  the  one  who  sailed  down-  or  up-river.  One  investi- 
gated it  among  the  officials  in  the  time  of  the  King  Menkheperre 
(Thutmose  III).  Now,  when  the  one  who  sailed  down-  or  up- 
river  whom  they  took;  and  when  [the  superior  officials  of]  [the 
king],  Menkheperre,  went  about  [after  these  officials]  each  year, 
[that  they  might  make  an]  expedition  to  the  city,  and  that  these 
superior  officials  might  come  to  these  officials,  saying  :  ''Give  thou 
[to  us]  the  consideration  for  the  careless  expedition";  then,  be- 
hold, the  Pharaoh,  L.  P.  H.,  made  the  expedition  at  the  feast  of 
Opet  each  year  without  carelessness.  One  prepared  the  way 
before  the  Pharaoh  [and  questioned  the  local  magistrate,  wherever 

he]  landed,  [concerning  the  corrupt  official]  causing  him  to 

what  he  (the  corrupt  official),  was  like.     As  for  the  one  who  goes 

about  again,  afterward,  to  seek  the  consideration, then  these 

officials  shall  do  about  with  the  expedition  concerning  the  affairs 

of  these  poor  people My  majesty  commands  to  prevent  that 

one  shall  do  thus,  beginning  with  this  day the  landing ;   he 

i3  the  one  against  whom  one  shall  prosecute  it. 

X.  AGAINST    STEALING    VEGETABLES    UNDER    PRETENSE 

OF  COLLECTING  TAXES 

11.  Likewise  the  collection  of  vegetables  for  the  breweries 
[and    kitchens  of    the  Pharaoh  and] [Extortion  was  prac- 

^  The  meaning  probably  is  that  the  cattle  loaned  on  contract  by  the 
Pharoah  sometimes  died,  in  which  case  the  people  must  show  the  hides. 
These  the  corrupt  officials  often  stole  before  the  overseer  of  cattle  arrived. 


450  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

ticed,  and  the  officials  plundered]  the  poor,  taking  the  best  of  their 
vegetables,  saying:  "They  are  for  the  impost  [of  the  Pharaoh]." 
[Thus  they]  robbed  the  poor  of  their  labors,  so  that  a  double 
[impost  was  levied.  Now,  my  majesty  commands  that  as  for 
any  officials  who  come  to]  collect  vegetables  [for]  the  impost  of 

Pharaoh,  L.  P.  H.,  in  the  arbors,  and  the houses  of  the 

estates  of  Pharaoh,  L.   P.  H.,  and  the of  Pharaoh  which 

contain  vegetables   (concerning  whom)   one  shall   hear,   saying : 

*'  They for  any of  any  citizen  of  the  army,  or  [any] 

people,  [beginning  with  this  day,  the  law  shall  be  executed  against 
them] transgressing  commands. 

XI.  ENACTMENTS  TOO  FRAGMENTARY  FOR  ANALYSIS 

12.  (The  fragmentary  condition  [of  these  lines]  makes  any  co- 
herent rendering  impossible.  They  contain,  however,  a  new  en- 
actment of  the  greatest  interest  regarding  taxation  of  grain,  in 
which  there  is  an  apparent  contrast  between  the  property  owners, 
or  citizens  of  the  city,  and  the  poor,  thus :) 

13.  Now  as  for  these  officials  of  the  herds,  who  go  about 

in  the  southern  region  or  the  northern  region  collecting  grain 

from    the    [citizens]    of    the    city going    about in    the 

southern    region    or    northern    region    collecting from    the 

poor , 

14.   going  about  taking  possession  to  bring  every  citizen, 

to  cause  them  to  see (concerning  whom)   one  shall  hear, 

(saying)  " a  crime, collectors  of  the  harem  who  go 

about  in  the  [towns  tax-collecting] the of  the  fisher- 
men   carrying  the '' 

XII.  NARRATIVES  OF  THE  KING'S  REFORMS,  CONTAINING 
ALSO  AN  ENACTMENT  AGAINST    CORRUPT  JUDGES 

APPOINTMENT    OF    TWO    JUDGES 

15.  I  have  improved  this  entire  land 1  have  sailed  it,  as 

far  as  south  of  the  wall,  I  have  given ,  I  have  learned  its 

whole  interior,  I  have  traveled  it  entirely  in  its  midst,  I  have 

searched  in [and   I   have   sought   two   officials]   perfect   in 

speech,  excellent  in  good  qualities,  knowing  how  to  judge  the 
innermost  heart,  hearing  the  words  of  the  palace,  the  laws  of  the 
judgment-hall.  I  have  appointed  them  to  judge  the  Two  Lands, 
to  satisfy  those  who  are  in [I  have  given  to  each  one]  his  seat ; 


Chap.  XVI.]  EDICT   OF  HARMHAB  451 

I  have  set  them  in  the  two  great  cities  of  the  South  and  the  North  ; 
every  land  among  them  cometh  to  him  without  exception ;  I  have 
put  before  them  regulations  in  the  daily  register  [of  the  palace] 

and  I  have  directed  them  to  the  way  of  life,  I  lead  them 

to  the  truth,  I  teach  them,  saying  :  "  Do  not  associate  with  others 
of  the  people ;   do  not  receive  the  reward  of  another,  not  hearing 

.     How,  then,  shall  those  like  you  judge  others,  while  there 

is  one  among  you  committing  a  crime  against  justice  ?  " 

Now,  as  to  the  obligation  of  silver  and  gold [my]  maj- 
esty remits  it,  in  order  that  there  be  not  collected  an  obliga- 
tion of  anything  from  the  official  staff  of  the  South  and  North. 

PUNISHMENT    OF    BRIBERY 

16.  Now,  as  for  any  official  or  any  priest  (concerning  whom) 
it  shall  be  heard,  saying :  '*  He  sits,  to  execute  judgment  among 
the  official  staff  appointed  for  judgment,  and  he  commits  a  crime 
against  justice  therein; ''  it  shall  be  against  him  a  capital  crime. 
Behold,  my  majesty  has  done  this,  to  improve  the  laws  of  Egypt, 
in  order  to  cause  that  another  should  not  be . 


APPOINTMENT    OF    LOCAL    COURTS 

17.  [Behold,  my  majesty  appointed]  the  official  staff  of  the 
divine  fathers,  the  prophets  of  the  temples,  the  officials  of  the 
court  of  this  land  and  the  priests  of  the  gods  who  comprise  the 
official  staff  out  of  desire  that  they  shall  judge  the  citizens  of  every 
city.  My  majesty  is  legislating  for  Egypt,  to  prosper  the  life 
of  its  inhabitants;  when  he  appeared  upon  the  throne  of  Re. 
Behold,  the  official  staffs  have  been  appointed  in  the  whole  land 
all to  comprise  the  official  staffs  in  the  cities  accord- 
ing to  their  rank. 

XIII.   THE   KING'S  AUDIENCES  AND   LARGESSES 

18.   They  ^  went  around times  a  month,  which  he  made 

for  them  like  a  feast ;   every  man  sat  down  at  a  portion  of  every 
good  thing,  of  good  bread,  and  meat  of  the  storehouses,  of  royal 

provision their  voices  reached  heaven,  praising  all  benefits 

the  heart  of  all  the  soldiers  of  the  army.    [The  king  appeared 

to  the  people] throwing  (gifts)  to  them  from  the  balcony 

^  These  must  be  the  inspecting  officials  who  are  thus  so  liberally  pro- 
vided for,  that  they  have  no  occasion  to  accept  bribes,  etc. 


452  ANCIENT   AND   PRIMITIVE    LAWS   AND   CODES  [Pabt  III. 

while  every  man  was  called  by  his  name  by  the  king  himself. 
They  came  forth  from  the  presence  rejoicing,  laden  with  the  pro- 
vision of  the  royal  house ;  yea,  they  took  grain  heaps  in  the  gran- 
ary, every  one  of  them  bore  barley  and  spelt,  there  was  not  found 

one  who  had  nothing their  cities.     If  they  did  not  complete 

the  circuit  therein  within  three  days, their  khetkhet-officers 

hastened  after  them  to  the  place  where  they  were  immediately. 
They  were  found  there . 

XIV.  LAUDATION  OF  THE  KING,  AND  CONCLUSION 

19.  (Little  can  be  made  out  of  these  nine  lines.  In  line  9, 
the  conclusion  of  the  whole  edict  can  be  discerned :) 

Hear  ye  these  commands  which  my  majesty  has  made  for  the 
first  time  governing  the  whole  land,  when  my  majesty  remembered 
these  cases  of  oppression  which  occur  before  this  land. 


Chapter    XVII 

THE   LAWS  OF   GORTYN^ 

SECTION  1 

CLAIMS  TO  FREEDOM   OR  TO  POSSESSION   OF  A  SLAVE 

I.  Whoever  is  going  to  contend  about  a  freeman  or  slave, 
shall  not  lead  him  away  before  trial.  And  if  he  lead  him 
away  (the  judge)  shall  adjudge  (a  fine  of)  ten  staters  in 
case  of  a  freeman,  five  in  case  of  a  slave  for  leading  him 
away,  and  shall  judge  that  he  let  him  go  within  three  days. 
And  if  he  shall  not  let  him  go,  he  shall  adjudge  (a  fine  of) 
a  stater  in  case  of  a  freeman,  a  drachm  in  case  of  a  slave 
for  each  day  until  he  let  him  go,  and  with  respect  to  the 
time  the  judge  shall  decide  on  oath. 

And  if  he  should  deny  leading  him  away,  the  judge  shall 
decide  on  oath,  unless  a  witness  should  declare. 

And  if  the  one  contend  that  he  is  free  and  the  other  that 
he  is  a  slave,  the  stronger  shall  be  they  who  declare  him  to 
be  free.  And  if  they  contend  about  a  slave,  saying  each 
that  it  is  his  (slave),  if  a  witness  declare  it,  the  judge  shall 
decide  according  to  the  witness,  but  if  they  either  declare 
for  both  or  for  neither,  the  judge  shall  decide  on  oath. 

And  if  the  possessor  lose  his  suit,  he  shall  let  a  freeman 
go  within  five  days,  but  a  slave  he  shall  give  back  into  hands 
(of  his  opponent).  And  if  he  let  him  not  go  or  give  him 
not  back,  (the  judge)  shall  adjudge  him  to  win  in  case  of  a 
freeman  fifty  staters,  and  a  stater  for  each  day  until  he  let 

1  [This  code,  the  date  of  which  is  usually  given  as  about  450  b.c,  was 
inscribed  on  blocks  of  gray  limestone  forming  part  of  a  wall,  the  ruins  of 
which  were  discovered  in  Crete  in  the  summer  of  1884.  The  translation 
is  by  Dr.  H.J,  Roby,  and  was  published  in  the  "Law  Quarterly  Review," 
vol.  II  (1886),  p.  142  seq.  An  account  of  the  discovery  is  given  {I.  c.)  at 
page  135.  These  laws,  like  the  Roman  Twelve  Tables  (see  Chapter  XVIII) 
were  in  the  form  of  twelve  tables  or  rather  columns. 

This  translation  is  reprinted  by  permission  of  Sir  Frederick  Pollock, 
editor  of  the  "Law  Quarterly  Review,"  and  of  the  translator. 

The  Roman  numerals  at  the  side  denote  the  columns;  the  topical 
analysis  is  by  the  translator.] 

453 


454  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

him  go,  and  in  case  of  a  slave  ten  staters  and  a  drachm  for 
each  day  until  he  give  him  back  into  hands.  And  if  the 
judge  shall  adjudge  (a  fine),  there  shall  be  exacted  within 
a  year  threefold  or  less,  not  more,  and  with  respect  to  the 
time  the  judge  shall  decide  on  oath. 

And  if  the  slave,  in  whosoever  case  he  has  lost  his  suit, 
take  sanctuary,  (the  defendant)  summoning  him  in  the 
presence  of  two  witnesses,  runners,  freemen  shall  point  out 
(the  fact)  at  the  temple  wherever  he  be  in  sanctuary,  either 
(the  defendant)  himself  or  another  on  his  behalf;  and  if 
he  summon  not  and  point  not  out,  he  shall  restore  what 
has  been  written. 

And  if  he  even  give  him  not  back  in  the  year,  he  shall 
besides  restore  the  single  values,  and  if  he  die,  while  the 
suit  is  in  contention,  he  shall  restore  the  single  value. 

And  if  (one  when)  Ruling  lead  away  (a  slave),  or  another 
lead  away  (a  slave)  of  one  Ruling,  if  he  leave  office,  he  shall 
contend,  and  if  he  lose  his  suit  he  shall  restore  .  .  .  what 
has  been  written. 

To  one  that  leads  away  (a  slave)  won  in  a  suit  .  .  .  (or) 
pledged,  there  shall  be  no  damage. 

11^  SECTION  2 

RAPE,  ADULTERY,  AND  THE  LIKE 

3|C  3|C  5|C  3(»  3|C  3|C  3|C 

) 

SECTION  3 

A   WOMAN'S    RIGHT    TO    PROPERTY    AFTER    DIVORCE    OB 
HUSBAND'S  DEATH 

If  a  man  and  woman  separate,  she  shall  have  her  own 
things,  which  she  had  when  she  went  to  the  man,  and  the 
half  of  the  fruit,  if  it  be  from  her  own  goods,  and  the  .  .  . 
(part?)  whatever  it  be  (of)  whatever  she  has  woven,  and 
five  staters,  if  the  man  be  the  cause  of  the  divorce ;  but  if 
III.  the  man  should  say  .  .  .  the  judge  shall  decide  on  oath. 

But  if  she  should  bear  off  anything  else  of  the  man's, 
she  shall  restore  five  staters,  and  whatever  she  bear  off, 
itself  (shall  she  give  back),  and  whatever  she  have  taken 
away,  itself  shall  she  give  back.  And  whatsoever  things 
she  shall  deny  (having  taken),  the  judge  shall  adjudge  the 
woman  to  deny  on  oath  by  Artemis,  near  the  Amyclseum 


Chap.  XVII,  §  4.]  THE   LAWS   OF   GORTYN  455 

near  the  Bowwoman.  And  whatever  any  one  shall  take 
away  from  her,  after  she  has  denied  on  oath,  (he)  shall 
restore  five  staters  and  the  thing  itself.  And  if  a  stranger 
join  in  packing  upC^),  he  shall  restore  ten  staters,  and  two- 
fold the  thing  itself,  whatsoever  the  judge  shall  swear  he 
hsis  joined  in  packing  Mp(^) . 

If  a  man  should  die,  leaving  children,  if  the  woman  will, 
she  shall  be  wedded,  having  her  own  things,  and  whatever 
her  man  have  given  her  according  to  what  is  written,  in 
presence  of  three  w^itnesses,  runners,  freemen;  but  if  she 
bear  off  anything  of  the  children's,  there  shall  be  right  to 
sue. 

And  if  he  leave  her  childless,  she  shall  have  her  own 
things,  and  of  whatever  she  has  woven  the  half,  and  of  the 
fruit  from  within  a  .  .  .  share  with  those  belonging,  and 
anything  her  man  have  given  her  as  is  written ;  but  if  she 
bear  off  anything  else,  there  shall  be  right  to  sue. 

And  if  a  woman  should  die  childless,  there  shall  be  given 
back  to  those  belonging  her  own  things,  and  the  half  of 
what  she  has  woven,  and  the  half  of  the  fruit,  if  it  be  from 
her  own  things. 

Guerdon  if  man  or  woman  will  to  give  (they  shall  give) 
either  dress  or  twelve  staters  or  a  piece  of  goods  worth  twelve 
staters,  and  not  more. 

If  a  female  householder  be  separated  from  a  male  house- 
holder in  his  life  or  by  his  death,  she  shall  have  her  own 
things ;  but  if  she  bear  off  anything  else,  there  shall  be  right 
to  sue. 

SECTION  4 

DISPOSAL  OF  A  CHILD  BORN   AFTER  DIVORCE,  OR  CHILD 
OF  UNMARRIED   SLAVE 

If  a  woman  bear  a  child  while  divorced,  (she)  shall  send 
it  to  the  man  to  his  roof  in  the  presence  of  three  witnesses. 
And  if  he  should  not  receive  it,  the  child  shall  be  at  the 
mother's^isposal  to  bring  up  or  to  put  away ;  and  the  kins- 
men and  the  witnesses  shall  be  more  sworn  whether  they 
sent  the  child. 

And  if  a  female  householder  bear  a  child  while  divorced 
(she)  shall  send  it  to  the  lord  of  the  man,  who  wedded  her, 
in  the  presence  of  two  witnesses.     And  if  he  shall  not 


456  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

IV.  receive  it,  the  child  shall  be  at  the  disposal  of  the  lord  of 
the  female  householder.  And  if  she  should  be  wedded 
again  to  the  same  man  in  the  course  of  the  first  year,  the 
child  shall  be  at  the  disposal  of  the  lord  of  the  male  house- 
holder, and  he  that  sent  it  shall  be  more  sworn  and  the 
witnesses. 

A  woman  divorced,  if  she  should  cast  away  a  child  before 
sending  according  to  what  is  written,  shall  restore  in  case 
of  a  free  (child)  fifty  staters,  in  case  of  a  slave  five-and- 
twenty,  if  she  lose  the  suit.  But  if  a  man  has  no  roof 
whither  she  shall  send  it,  or  she  do  not  see  him,  if  she 
should  put  away  the  child,  it  shall  be  without  damage  (to 
her). 

If  a  female  householder  unwedded  should  conceive  and 
bring  forth,  the  child  shall  be  at  the  disposal  of  the  lord  of 
the  father.  But  if  the  father  should  not  be  alive,  it  shall 
be  at  the  disposal  of  the  lords  of  the  brothers. 

SECTION  5 
DIVISION  OF  PARENTS'  PROPERTY  AFTER  DEATH 

The  father  shall  have  power  over  the  children  and  over 
the  goods,  over  the  division  (thereof),  and  the  mother  over 
her  own  goods.  While  they  live,  it  shall  not  be  necessary 
to  divide ;  but  if  one  should  be  cast  in  damages,  division 
shall  be  made  to  him  that  is  cast  in  damages  as  has  been 
written. 

And  if  one  die,  the  roofs  in  the  city  and  whatever  is  in 
the  roofs,  in  which  no  householder  houses,  housing  on  the 
spot,  and  the  cattle  and  the  strong-footed,  such  as  are  not 
a  householder's,  shall  be  at  the  disposal  of  the  sons,  and 
all  the  other  goods  they  shall  well  divide,  and  the  sons  as 
many  soever  as  they  be  shall  be  allotted  each  two  shares,  and 
the  daughters  as  many  soever  as  they  be,  each  one  share. 

(And  they  shall  divide)  the  mother's  things  also,  if  she 
die,  as  .  .  .  And  if  there  be  no  goods  but  there  be  a  roof, 
the  daughters  shall  have  allotted  to  them,  as  has  been 
written. 

And  if  the  father  being  alive  will  to  give  to  her  that  is 
being  wedded,  he  shall  give  according  to  what  is  written 
and  not  more.  And  to  whomsoever  he  before  gave  or 
promised  this  shall  she  have  and  not  be  allotted  other 


Chap.  XVII,  §  6.]  THE   LAWS  OF  GORTYN  457 

V.  things.  Whatever  woman  has  no  goods  either  from  her 
father's  gift  or  her  brother's,  or  his  promise  or  by  allotment 
jrom  the  time  that(  ?)  the  ^thalian  troop,  Kyllos  and  friends, 
were  rulers,  these  woman  shall  have  allotments,  but  for 
those  previous  there  shall  be  no  right  to  sue. 

If  a  man  or  woman  die,  if  there  be  children  or  children's 
children  or  children  of  these,  they  shall  have  the  goods. 
And  if  there  be  none  of  these,  but  there  be  sisters  of  the 
deceased  and  sister's  children  or  children's  children,  they 
shall  have  the  goods.  And  if  there  be  none  of  these,  (then) 
to  whomsoever  it  belongs,  whenever  it  be,  they  shall  take 
the  goods  to  themselves.  And  if  there  should  not  be  any 
belonging,  then  whoever  be  the  lot  of  the  house,  these  shall 
have  the  goods. 

And  if  (of)  those  belonging,  some  will  to  divide  the  goods 
and  some  do  not,  the  judge  shall  adjudge  all  the  goods  to 
be  at  the  disposal  of  those  who  will  to  divide,  until  they 
divide.  And  if,  after  the  judge  has  adjudged  it,  (any  one) 
by  force  disturh{'l)  or  lead  away  or  bear  off,  he  shall  restore 
ten  staters  and  the  thing  itself  twofold.  And  (in  respect) 
of  mortals  and  fruit  and  clothing  and  bracelets  and  super- 
ficial goods,  if  they  will  not  to  divide  .  .  .  shall  decide  on 
oath  in  reference  to  the  matters  in  contention.  And  if  in 
dividing  the  goods  they  do  not  agree  about  the  division, 
they  shall  put  up  the  goods  for  sale,  and  selling  to  whoso- 
ever offers  most,  they  shall  allot  themselves  (of)  the  value 
each  the  share  belonging.  And  when  they  divide  the 
goods,  there  shall  be  present  three  or  more  witnesses, 
runners,  freemen. 
VI.  If  he  give  to  a  daughter,  (it  shall  be)  according  to  the 
same  (rules). 

SECTION  6 
SEPARATE  PROPERTY   OF  CHILDREN  AND  MOTHER 

While  the  father  lives,  no  one  shall  buy  or  take  in  pledge 
from  the  son  (any)  of  the  father's  goods,  but  whatsoever 
he  have  himself  acquired  or  had  allotted  to  him,  he  shall 
sell  if  he  will.  Nor  shall  the  father  (sell  or  promise)  the 
children's  goods,  whatever  they  have  themselves  acquired 
or  had  allotted  to  them,  nor  shall  the  man  sell  or  promise 
the  woman's,  nor  the  son  the  mother's.  And  if  any  one 
should  buy  or  take  in  pledge  or  obtain  promise,  and  it  is 


458  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

written  otherwise  than  these  writings  are  written  ,  .  .  the 
goods  shall  be  at  the  disposal  of  the  mother  and  at  the 
disposal  of  the  woman,  and  he  who  sold  or  gave  in  pledge 
or  promised  shall  restore  twofold  to  him  that  bought  or 
took  in  pledge  or  obtained  promise,  and  if  there  be  any 
other  matter  of  damage,  the  single  (value)  :  and  for  matters 
previous  there  shall  be  no  right  to  sue.  And  if  the  oppo- 
site contendant  contend  in  respect  of  the  thing,  whatever 
they  are  contending  about,  that  it  is  not  the  mother's  or 
the  woman's,  he  shall  contend  in  whatever  way  it  belongs 
(to  contend)  before  the  judge  as  each  thing  is  written. 

And  if  the  mother  die  leaving  children,  the  father  shall 
have  power  over  the  mother's  things,  but  shall  not  sell  nor 
pledge  unless  the  children  being  runners  approve.  And  if 
one  should  buy  or  take  in  pledge  otherwise,  the  goods  shall 
be  at  the  disposal  of  the  children,  and  he  that  sold  or  he 
that  pledged  shall  restore  to  him  that  bought  or  took  in 
pledge  the  double  of  the  value,  and  if  there  be  any  other 
matter  of  damage,  the  single  (value) .  But  if  he  wed  another 
woman,  the  children  shall  have  power  over  the  mother's 
things. 

SECTION  7 
RIGHTS  OF  REDEEMER   IN   THE  REDEEMED  CAPTIVE 

And  if  .  .  .  being  held  in  bondage  from  a  foreign  state, 
and  by  his  choice  some  one  shall  redeem  him,  he  shall  be 
at  the  disposal  of  the  redeemer,  until  he  pay  back  what 
belongs.  And  if  they  do  not  agree  about  the  amount,  or 
(it  be  asserted)  that  he  redeemed  him  without  his  choice, 
the  judge  shall  decide  on  oath  in  reference  to  the  matters 
in  contention. 

SECTION  8 
STATUS  OF  CHILD  OF  FREE  AND  SLAVE  PARENTS 

?  ?  .  .  .  (if)  coming  to  a  freewoman  he  wed  her,  the 
children  shall  be^eei  But  if  a  freewoman  to  a  slave,  the 
VII.  children  shall  be  slave. ;  And  if  there  be  born  from  the  same 
mother  free  and  slave  children,  if  the  mother  die,  if  there 
be  goods,  the  free  children  shall  have  them ;  but  if  freemen 
should  not  be  forthcoming,  those  belonging  shall  take 
them  to  themselves. 


Chap.  XVII,  §  lO.J  THE   LAWS   OF   GORTYN  459 

SECTION  9 

RESPONSIBILITY  FOR  WRONGFUL  ACTS  OF  A  PURCHASED 

SLAVE 

If  (one)  after  buying  a  slave  from  the  market,  shall  not 
export (2)  him  within  sixty  days,  if  he  have  wronged  any 
one  before  or  after,  there  shall  be  right  of  suit  to  him  that 
has  acquired  (him). 

SECTION  10  l^^^^ 

MARRIAGE   AND  PROPERTY  OF  HEIRESS 

An  heiress  shall  be  wedded  to  her  father's  brother,  the 
eldest  of  those  that^are.l  And  if  there  be  more  heiresses 
and  father's  brothers,  (the  second)  shall  be  wedded  to  the 
next  eldest.  And  if  there  be  no  father's  brothers,  but 
brothers'  sons,  (she)  shall  be  wedded  to  one  that  is  (child) 
of  the  eldest.  And  if  there  be  more  heiresses  and  more 
brothers'  sons  (the  next  eldest  heiress)  shall  be  wedded  to 
another  who  is  next  to  him  that  is  (child)  of  the  eldest. 
And  he  that  belongs  shall  have  one  heiress  and  not  more. 

And  so  long  as  he  to  whom  it  belongs  to  wed  be  unripe, 
or  the  heiress  (be  unripe),  the  heiress  shall  have  the  roof, 
if  there  be  one,  and  he  to  whom  it  belongs  to  wed  shall 
have  allotted  to  him  the  half  of  the  produce  of  all.  And 
if  he  to  whom  it  belongs  to  wed,  being  aloof  from  running, 
will  not  (though)  grown,  to  wed  her  (though)  grown,  all 
the  goods  and  the  fruit  shall  be  at  the  disposal  of  the  heiress 
until  he  wed  her.  But  if  being  a  runner  he  to  whom  it 
belongs  will  not  to  wed  her  grown  (and)  willing  to  be  wed, 
the  kinsmen  of  the  heiress  shall  contend,  and  the  judge  shall 
adjudge  him  to  wed  within  two  months ;  and  if  he  wed  her 
not,  as  is  written,  she  having  all  the  goods  (shall  be  wedded) 
to  him  that  belongs  if  there  be  another.  And  if  there  should 
be  none  belonging,  she  shall  be  wedded  to  whomever  she 
will  of  those  of  the  tribe  who  ask. 

And  if  (when)  grown  she  will  not  be  wedded  to  him  that 
VIII.  belongeth,  or  he  that  belongeth  be  unripe,  and  the  heiress 
.  .  .  the  heiress  shall  have  the  roof,  if  there  be  one,  in  the 
city,  and  whatever  is  in  the  roof,  and  having  allotted  to 
her  the  half  of  the  other  things  she  shall  be  wedded  to  an- 
other, whomever  she  will  of  those  of  the  tribe  who  ask; 
and  a  portion  of  the  goods  shall  be  given  to  one. 


460  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

And  if  there  should  not  be  any  persons  belonging  to  the 
heiress  as  is  written,  she,  having  all  the  goods,  shall  be 
wedded  to  whomever  of  the  tribe  she  will.  And  if  no  one 
of  the  tribe  should  will  to  wed  her,  the  kinsmen  of  the 
heiress  .  .  .  not  ...  to  wed  her;  and  if  one  wed  her 
within  thirty  days  from  the  time  they  have  (so)  said, 
(well),  but  if  not  she  shall  wed  another  whomever  she  may 
be  able. 

And  if,  her  father  or  brother  having  given  her  (in  mar- 
riage), she  become  heiress,  if  he  to  whom  they  gave  her 
being  willing  to  wed,  she  should  not  be  willing  to  be  wedded, 
if  she  has  had  children,  (then)  having  allotted  to  her  (half) 
of  the  goods  as  has  been  written  she  shall  be  wedded  to 
.  .  .  ;  but  if  there  should  be  no  children,  having  all  (the 
goods)  she  shall  be  wedded  to  him  that  belongs,  if  there 
be  one,  and  if  not,  (then)  as  has  been  written. 

If  a  man  should  die  leaving  children  to  an  heiress,  if 
she  will  she  shall  be  wedded  to  whomever  of  the  tribe  she 
can,  but  without  compulsion.  But  if  the  dead  man  should 
leave  no  children,  she  shall  be  wedded  to  him  that  belongs, 
as  has  been  written.  And  if  he  to  whom  it  belongs  to  wed 
the  heiress  should  not  be  resident  and  the  heiress  be  ripe, 
she  shall  be  wedded  to  him  that  belongs,  as  has  been  written. 

And  (one)  shall  be  heiress,  if  there  be  no  father  or  brother 
from  the  same  father.  And  over  the  working  of  the  goods 
the  father's  brothers  shall  have  power  .  .  .  the  half  as 
long  as  she  be  .  .  .  And  if  while  she  is  unripe,  there  should 
be  no  one  belonging,  the  heiress  shall  have  power  over  the 
goods  and  the  fruit,  and  so  long  as  she  be  unripe,  she  shall 
be  brought  up  with  her  mother ;  and  if  there  should  not  be 
mother,  she  shall  be  brought  up  with  her  mother's  brothers. 

And  if  any  should  wed  the  heiress  and  it  has  been  other- 
wise written  .  .  .  those  belonging  (if)  he  leave  an  heiress 
IX.  .  .  .  (if)  any  one  should  buy  goods  or  take  in  pledge  any 
of  the  goods  of  the  .  .  .  ,  the  goods  shall  be  at  the  disposal 
of  the  heiress,  and  he  that  sold  or  pledged  shall  to  him  that 
bought  or  took  in  pledge  restore,  if  he  lose  his  suit,  two- 
fold, and  if  there  be  any  other  damage  he  shall  besides 
restore  the  single  value,  as  .  .  .  and  for  matters  previous 
there  shall  be  no  right  to  sue.  And  if  the  opposite  con- 
tendant  contend  about  the  thing  for  which  they  are  con- 
tending that  it  is  not  the  heiress's,  the  judge  shall  decide 


Chap.  XVII,  §  12.]  THE   LAWS   OF   GORTYN  461 

on  oath;  and  if  he  should  win  that  it  is  not  the  heiress's, 
he  shall  contend,  in  whatever  way  it  belongs  (to  contend) 
as  each  thing  is  written. 

SECTION  11 

PROCEDURE    IN  CERTAIN  CASES   OP  SURETYSHIP  AND 
OTHER  OBLIGATIONS 

If  a  man  should  die  having  become  surety  or  having  lost 
a  suit,  or  owing  securities {"i) ,  or  having  cheated{t)  or  having 
made  an  agreement{'i) ,  or  another  to  him,  (he)  shall  contend 
in  the  course  of  the  first  year :  and  the  judge  shall  give 
judgment  in  reference  to  the  matters  in  contention.  If  he 
contend  upon  a  suit  won,  the  judge  and  the  registrar  if  he 
be  alive  and  a  citizen,  and  the  witnesses  who  belong  (shall 
declare),  and  of  a  suretyship  and  of  securities'^),  and  of 
cheating{t)  and  of  an  agreement(2) ,  those  who  belong  shall 
declare  as  witnesses.  And  if  they  fail,  he  shall  adjudge  that 
(the  plaintiff) ,  himself  on  oath  and  the  witnesses,  shall  win 
the  single  value. 

If  a  son  become  surety,  so  long  as  his  father  live,  he  shall 
be  led  away,  himself  and  the  goods,  whatever  he  has  ac- 
quired. 

If  any  one  do  not  give  back  .  .  .  [l|  lines  broken]  .  .  . 
if  grown  witnesses  declare,  in  case  of  a  hundred  staters  or 
more,  three  (witnesses),  in  case  of  less  as  far  as  ten  staters, 
two,  in  case  of  less,  one,  he  shall  give  judgment  in  reference 
to  the  declaration  made.  And  if  the  witnesses  should  not 
X.  declare,  ...  [2  lines  broken]  ...  he  shall  either  deny 
on  oath  or  .  .  .  [15  lines  wanting.] 

SECTION  12 

LIMITATION  OF  GIFTS  IN   PREJUDICE   OF   THOSE  HAVING 

CLAIMS 

.  .  .  son  to  mother  ...  a  hundred  staters  or  less,  but 
not  more ;  and  if  (he)  should  give  more,  if  those  belonging 
will,  they  shall  pay  back  the  money  and  have  the  goods. 
But  if  any  one  should  give  while  owing  money,  or  when 
cast  in  damages  or  while  a  suit  is  in  contention,  if  the  re- 
mainder should  not  be  of  the  worth  of  the  damages,  the 
gift  shall  be  of  no  good. 


462  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

SECTION   13 

PROHIBITION  TO  SELL  OR  PLEDGE  A  PLEDGED   OR 
DISPUTED   SLAVE 

(One)  shall  not  buy  a  man  that  is  pledged  before  he 
that  pledged  have  redeemed  (him),  nor  one  who  is  under 
contention,  nor  receive  (such  a  gift?),  nor  obtain  promise 
(of  him),  nor  take  (him),  in  pledge.  And  if  any  one  should 
do  any  of  these  things,  it  shall  be  of  no  good,  if  two  witnesses 
should  declare  (it). 


I- 


SECTION   14 
ADOPTION 


Adoption  shall  be  whenever  any  one  will.  Adoption 
shall  be  in  the  market-place,  when  the  citizens  are  as- 
sembled, from  the  stone  fronPwRTch  addresses  are  made. 
And  the  adopter  shall  give  to  his  own  club  a  victim  and  a 
pitcher  of  wine. 

And  if  (the  adopted)  take  over  all  the  goods  and  there 
dioell{t)  not  with  him  natural  children,  he  shall  perform 
the  divine  and  human  (duties)  of  the  adopter  and  take 
them  on  himself  as  is  written  for  natural  children.  And  if 
he  will  not  to  perform  them  as  is  written,  those  belonging 
shall  have  the  goods.  But  if  there  be  natural  children 
to  the  adopter,  with  the  males  (shall  share)  the  adopted  as 
the  females  have  allotted  to  them  from  their  brothers; 
XI.  and  if  there  be  no  males  but  females,  the  adopted  (male) 
shall  have  an  equal  share :  and  he  shall  not  be  obliged  to 
perform  the  duties  of  the  adopter  and  to  take  to  himself 
the  goods,  whatever  the  adopter  have  left;  and  more  the 
adopted  shall  not  come  to. 

And  if  the  adopted  should  die  without  leaving  natural 
children,  the  goods  shall  return  to  those  who  belong  to  the 
adopter. 

And  if  the  adopter  (will?),  he  shall  renounce  in  the 
market-place  from  the  stone  from  which  addresses  are 
made,  when  the  citizens  are  assembled.  And  he  shall  hand 
over  .  .  .  staters  to  the  law-court.  And  the  registrar 
shall  give  them  back  as  a  guest-present  to  him  that  was 
renounced. 

And  a  woman  shall  not  adopt,  nor  shall  an  ungrown  male. 
*        And  these  shall  be  dealt  with,  as  he  has  written  these 


Chap.  XVII,  §  19.]  THE   LAWS   OF   GORTYN  463 

writings,  and  for  matters  previous,  however  any  one  be, 
there  shall  no  longer  be  right  to  sue  either  for  the  adopted 
or  against  the  adopted. 

SUPPLEMENTARY  PROVISIONS 
SECTION   15   (C/.  SEC.  1) 

Whoever  leads  away  a  man  before  trial,  shall  always  be 
received  (?). 

SECTION  16 

A  judge,  whatever  it  has  been  written  he  should  judge 
according  to  witnesses  or  as  denied  on  oath,  shall  so 
judge  as  has  been  written ;  and  in  respect  of  other  matters 
he  shall  decide  on  oath  in  reference  to  the  matters  in  con- 
tention. 

SECTION   17   (C/.  SEC.   11) 

If  (a  man)  die,  owing  money  or  having  lost  a  suit,  if 
those  to  whomsoever  it  belongs  will  to  take  over  the  goods, 
to  restore  for  him  the  damages  and  the  money  to  whom- 
soever he  owes,  they  shall  have  the  goods.  And  if  they 
will  not,  the  goods  shall  be  at  the  disposal  of  those  who 
won  the  suit  or  those  to  whom  he  owes  the  money,  and 
other  damage  there  shall  be  none  to  those  who  belong. 
And  there  shall  be  led  away  on  account  of  the  father  the 
father's  goods,  and  on  account  of  the  mother  the  mother's 
goods. 

SECTION  18  (Cf.  SEC.  3) 

A  woman  who  ever  separates  from  a  man,  if  the  judge 
shall  adjudge  an  oath,  shall  deny  on  oath  within  twenty 
days  in  the  presence  of  the  judge.  Whatever  he  imputes 
to  her,  he  shall  give  notice  (thereof)  at  the  commencement{  ?) 
of  the  suit  to  the  woman  and  to  the  judge  and  to  the  registrar 
the  fourth  day  before  in  the  presence  of  .  .  . 
XII.      [14  lines  wanting.] 

SECTION  19   {Cf.  SECS.  3,   12) 

If  a  son  gave  goods  to  his  mother  or  a  man  to  a  woman, 
as  has  been  written  before  these  writings,  there  shall  be 
no  right  to  sue ;  but  for  the  future  he  shall  give  as  has  been 
written. 


464  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

SECTION  20   (C/.   SEC.   10) 

Heiresses,  if  there  be  no  orphan-judges,  so  long  as  they 
are  unripe,  shall  be  dealt  with  in  accordance  with  what 
has  been  written.  And  wheneYeT{?),  there  being  no  one 
belonging  and  no  orphan-judges,  an  heiress  be  brought  up 
with  her  mother,  the  father's  brother  and  the  mother's 
brother,  who  have  been  written,  shall  manage  the  goods 
and  the  produce,  however  they  best  can,  until  she  be 
wedded.  And  she  shall  be  wedded,  when  aged  twelve  years 
or  older. 


Chapter  XVIII 
THE  TWELVE   TABLES  ^ 


1.  If  [a  man]  call  [another]  to  law,  he  shall  go.  If  he  go  not, 
they  shall  witness  it ;   then  he  shall  be  seized. 

2.  If  he  flee  or  evade,  lay  hands  on  him  as  he  goes. 

3.  If  illness  or  age  hinder,  an  ox-team  shall  be  given  him,  but 
not  a  covered  carriage,  if  he  [defendant  ?]  does  not  wish. 

4.  For  a  rich  citizen  the  surety  shall  be  a  rich  one ;  for  a  poor 
one,  whoever  offers  shall  be  surety. 

5.  [Missing.] 

6.  Where  they  settle  the  matter,  let  it  be  told. 

7.  If  they  settle  not,  they  shall  join  issue  in  the  assembly  or 
in  the  forum  before  midday,  then  they  shall  plead  and  prove,  both 
being  present. 

8.  After  midday,  the  cause  shall  be  adjudged  to  the  party 
present  [if  the  other  has  failed  to  appear]. 

9.  If  both  attend,  sunset  shall  be  the  last  moment  [of  the 
cause]. 

10.  [Missing.] 

II 

1.  [Missing.] 

2.  A  grievous  illness  ...  or  a  date  sworn  with  a  non-citizen 
...  if  any  of  these  happen  to  judge  or  arbiter  or  defendant,  the 
date  [for  the  suit]  shall  be  put  over. 

3.  He  who  needs  a  witness  shall  within  three  days  go  to  his  house 
and  notify  him. 

in 

1.  In  suits  of  money  debt,  after  judgment  by  law,  thirty  days 
shall  be  allowed. 

2.  Afterwards,  he  shall  be  hand-grasped,  and  led  to  law. 

1  [Translated  by  John  H.  Wigmore  from  the  restored  text  as  given 
in  C.  G.  Bruns's  "Fontes  juris  Romani  Anttqui,"  7th  ed.,  1909,  edited 
by  Otto  Gradenwitz,  following  Th.  Mommsen.  The  traditional  date  given 
by  Livy  for  their  enactment  is  304  a.u.c,  or  450  b.c] 

465 


466  ANCIENT   AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

3.  If  he  do  not  what  is  adjudged,  or  if  no  one  becomes  surety 
for  him  as  he  goes  to  court,  he  shall  be  led  away  and  bound  with 
fettfi^S-QT  shackles  of  weight  not  more  than  15  [pounds],  or  if  he 
[plaintiff]  wills,  of  lesser  weight. 

4.  If  [the  debtor]  will,  he  shall  feed  at  his  own  cost.  If  not, 
he  who  has  him  bound  shall  give  a  pound  of  meal  a  day,  more  if 
he  wishes. 

5.  [Missing.  The  debtor  could  be  kept  for  sixty  days,  i.e. 
three  market-days,  being  taken  to  court  at  intervals.] 

6.  On  the  third  market-day,  they  may  divide  up  his  [body-] 
parts.  If  they  divide  more  or  less  [than  each  one's  share],  it  shall 
not  be  wrongful. 

7.  Against  a  non-citizen,  there  shall  be  a  perpetual  right.  .  .  . 

IV 

1.  [Missing.] 

2.  If  a  father  thrice  give  his  son  for  sale,  the  son  shall  be  free 
from  the  father. 

3,4.    [Missing.] 


1,  2.   [Missing.     The  status  of  women.] 

3.  As  a  man  [when  alive]  shall  have  ordered  concerning  his 
money  or  the  custody  of  his  estate,  so  the  law  shall  do. 

4.  If  he  dies  without  a  will,  and  no  heir  of  his  exists,  the  nearest 
agnate  shall  have  the  family. 

5.  If  no  agnate  exists,  the  gentiles  shall  have  the  family. 

6.  [Missing.] 

7.  If  a  man  become  insane,  his  money  and  his  family  power 
shall  go  to  his  agnates  and  gentiles.  .  .  . 

8.  9,  10.   [Missing  or  fragmentary.] 

VI 

1.  When  a  contract  or  transfer  is  to  be  made,  what  the  tongue 
has  pronounced,  so  the  law  shall  do. 

2,  3,  4.   [Missing.] 

5.  If  [two]  men  contend  with  hands  before  the  court  .   .   . 
[with  reference  to  an  article  to  be  sold,  pledged,  etc.]. 

6.  [Missing.] 

7.  Timber  once  built  into  [another  person's]  house  or  vine- 
trellis  shall  not  be  taken  out  of  its  place  [by  the  former  owner]. 


Chap.  XVIII.]  THE   TWELVE  TABLES  467 

8.  [Missing.  Prescribes  a  penalty  of  double  for  the  person 
who  used  the  timber.] 

9.  [Fragment  only.] 

VII 

1-6.    [Missing.     Deal  with  walls,  fields,  roads,  boundaries.] 

7.  [The  abutting  owner]  shall  wall  the  highway.  If  the  stone- 
work fall  into  disrepair,  [the  traveller]  may  drive  his  team  whither 
he  will. 

8.  If  rain-water  [from  the  neighbor's  eaves]  does  harm  .  .  . 
9-12.   [Missing.    Deal  with  easements,  sales,  emancipations.] 


VIII 

1.  Whoever  shall  chant  an  evil  spell  ... 

2.  If  [a  man]  has  broken  the  limb  [of  another]  and  does  not 
settle  with  him,  let  there  be  retaliation. 

3.  If  [a  man]  with  fist  or  club  breaks  the  bone  [of  another] 
he  is  liable  to  penalty,  of  300  [pence]  if  done  to  a  free  man,  150  if 
done  to  a  slave. 

4.  If  he  makes  an  assault,  25  [pence]  are  the  penalty. 

5-1 1 .  [Missing,  or  fragmentary.  Deal  with  damage  by  animals, 
evil  spells  for  crops,  night  trespasses,  arson,  tree-cutting,  etc.] 

12.  If  by  night  [a  man]  have  done  a  theft,  and  [the  owner]  kill 
him,  let  him  be  [as  if]  killed  by  law. 

13.  If  by  daylight  ...  [a  man  commit  a  theft,  and]  defend 
himself  with  a  spear  .  .  .  [you  may  kill  him]  and  shall  make  hue 
and  cry. 

14.  15.   [Missing  or  fragmentary.     Deal  with  theft.] 

16.  If  he  does  a  theft  but  he  is  not  detected  in  the  act  .  .  . 
[double  value  shall  be  paid]. 

17-20.    [Missing.     Deal  further  with  theft.] 

21.  If  a  patron  defrauds  a  client,  he  shall  be  accursed. 

22.  He  who  has  promised  to  bear  witness  or  has  acted  as 
weigher,  if  he  bear  not  testimony  [when  required],  shall  be  deemed 
a  miscreant  and  disqualified  thereafter  to  be  a  witness. 

23.  [Missing.  False  witness  shall  be  cast  from  the  Tarpeian 
Rock.] 

24.  If  a  spear  escape  from  the  hand,  without  being  thrown, 
.  .  .  [and  kill  another  person,  atonement  shall  be  made]. 

25-27.    [Missing.     Deal  with  poisoning,  night  brawls,  etc.] 


468  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

IX 

1-6.  [Missing.  Deal  further  with  homicide,  criminal  proceed- 
ings, etc.] 

X 

1.  A  dead  man  you  shall  not  bury  or  burn  within  the  city. 

2.  [Funeral  trappings  and  expenses  may  be  .  .  .]  more  than  this 
you  shall  not  do.  The  pyre- wood  shall  not  be  smoothed  with  an 
axe. 

3.  [Missing.     Deals  with  garments,  etc.] 

4.  Women  shall  not  tear  their  faces,  nor  make  excessive  lamen- 
tation for  the  dead. 

5.  You  shall  not  take  up  the  bones  of  a  dead  man  to  have  an- 
other funeral. 

6.  [Missing.] 

7.  He  who  obtains  a  prize,  whether  in  person  or  by  his  property,^ 
or  earns  a  reward  of  valor,  .  .  .  [these  may  be  buried  with  him]. 

8.  [Jewels,  silver],  .  .  .^or  gold  shall  not  be  included  [in  the 
funeral  corse].  But  if  the  deceased's  teeth  are  filled  with  gold, 
that  may  be  buried  or  burned  with  him,  and  it  shall  not  be  ac- 
counted wrongful. 

9.  10.   [Missing.     Deal  with  tombs,  etc.] 

XI 

1-3.  [Missing.  Deal  with  the  calendar,  holidays,  inter- 
marriage of  plebs  and  patricianate.] 

XII 

1.  [Missing.     Deals  with  sale-contracts,  etc.] 

2.  [Fragment,  dealing  with  harm  done  by  slaves.] 

3.  If  a  man  has  made  [and  won]  a  false  claim  of  property,  .  .  . 
three  arbiters  be  named,  and  on  their  judgment  .  .  .  double 
damages  shall  be  awarded. 

1  I.e.,  slaves  or  horses,  in  races,  etc. 


:  ^? 


Chapter  XIX 
THE   LAWS  OF  MANU^ 

CHAPTER  VIII.  JUDICIAL  PROCEDURE.  — RECOVERY  OF 
DEBTS.  —  WITNESSES.  —  WEIGHTS.  —  DEPOSITS.  —  SALE 
WITHOUT  OWNERSHIP.  —  CONCERNS  AMONG  PART- 
NERS.—SUBTRACTION  OP  GIFTS.  — NON-PAYMENT  OF 
WAGES.  —  NON-PERFORMANCE  OF  AGREEMENT.  —  RE- 
SCISSION OF  SALE  AND  PURCHASE.  —  MASTERS  AND 
HERDSMEN.  — DISPUTES  CONCERNING  BOUNDARIES.— 
DEFAMATION.  —ASSAULT  AND  HURT.  —  THEFT.  —  VIO- 
LENCE   (SAHASA).  — MISCELLANEOUS  RULES. 

1.  A  king,  desirous  of  investigating  law  cases,  must  enter  his 
court  of  justice,  preserving  a  dignified  demeanor,  together  with 
Brahmanas  and  with  experienced  councillors. 

2.  There,  either  seated  or  standing,  raising  his  right  arm, 
without  ostentation  in  his  dress  and  ornaments,  let  him  examine 
the  business  of  suitors. 

3.  Daily  (deciding)  one  after  another  (all  cases)  which  fall 
under  the  eighteen  titles  (of  the  law)  according  to  principles 
drawn  from  local  usages  and  from  the  institutes  of  the  sacred 
law. 

4.  Of  those  (titles)  the  first  is  the  non-payment  'of  debts,  (then 
follow),  (2)  deposit  and  pledge,  (3)  sale  without  ownership, 
(4)  concerns  among  partners,  and  (5)  resumption  of  gifts, 

5.  (6)  Non-payment  of  wages,  (7)  non-performance  of  agree- 
ments, (8)  rescission  of  sale  and  purchase,  (9)  disputes  between 
the  owner  (of  cattle)  and  his  servants, 

^  [Reprinted  by  permission  of  the  University  of  Oxford  Press  from 
"The  Laws  of  Manu,"  translated  with  extracts  from  "Seven  Commen- 
taries," by  G.  BiJHLER,  Oxford,  1886.  (Being  Vol.  XXV  of  the  "Sacred 
Books  of  the  East"  translated  by  Various  Oriental  Scholars,  and  edited 
by  F.  Max  Muller.) 

The  present  form  of  this  code  is  thought  to  date  about  200  B.C.,  although 
these  laws  aro  probably  much  more  ancient.  Approximately  a  quarter 
of  the  code  tseals  with  matters  strictly  legal  in  nature;  the  remainder, 
like  aU  other  ancient  codes,  lays  down  rules  of  religion,  ceremony,  deport- 
ment, health,  etc.,  as  of  equal  importance.  Other  well-known  sources  of 
Hindu  Law  are  the  Smriti  of  Yajnavalkya  and  the  Smriti  of  Narada, 
which,  in  the  order  named,  are  subsequent  in  time  to  the  Laws  of  Manu.j 

469 


470  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

6.  (10)  Disputes  regarding  boundaries,  (11)  assault  and  (12)  def- 
amation, (13)  theft,  (14)  robbery  and  violence,  (15)  adultery, 

7.  (16)  Duties  of  man  and  wife,  (17)  partition  (of  inheritance), 
(18)  gambling  and  betting;  these  are  in  this  world  the  eighteen 
topics  which  give  rise  to  lawsuits. 

8.  Depending  on  the  eternal  law,  let  him  decide  the  suits  of 
men  who  mostly  contend  on  the  titles  just  mentioned. 

9.  But  if  the  king  does  not  personally  investigate  the  suits, 
then  let  him  appoint  a  learned  Brahmana  to  try  them. 

10.  That  (man)  shall  enter  that  most  excellent  court,  accom- 
panied by  three  assessors,  and  fully  consider  (all)  causes  (brought) 
before  the  (king),  either  sitting  down  or  standing. 

11.  Where  three  Brahmanas  versed  in  the  Vedas  and  the 
learned  (judge)  appointed  by  the  king  sit  down,  they  call  that  the 
court  of  (four-faced)  Brahman. 

12.  But  where  justice,  wounded  by  injustice,  approaches  and 
the  judges  do  not  extract  the  dart,  there  (they  also)  are  wounded 
(by  that  dart  of  injustice). 

13.  Either  the  court  must  not  be  entered,  or  the  truth  must  be 
spoken ;  a  man  who  either  says  nothing  or  speaks  falsely,  becomes 
sinful. 

14.  Where  justice  is  destroyed  by  injustice,  or  truth  by 
falsehood,  while  the  judges  look  on,  there  they  shall  also  be 
destroyed. 

15.  "Justice,  being  violated,  destroys ;  justice,  being  preserved, 
preserves;  therefore,  justice  must  not  be  violated,  lest  violated 
justice  destroy  us." 

16.  For  divine  justice  (is  said  to  be)  a  bull  (vrisha) ;  that  (man) 
who  violates  it  (kurute  'lam)  the  gods  consider  to  be  (a  man 
despicable  like)  a  Stidra  (vrishala) ;  let  him,  therefore,  beware  of 
violating  justice. 

17.  The  only  friend  who  follows  men  even  after  death  is  justice ; 
for  everything  else  is  lost  at  the  same  time  when  the  body 
(perishes) . 

18.  One  quarter  of  (the  guilt  of)  an  unjust  (decision)  falls  on 
him  who  committed  (the  crime),  one  quarter  on  the  (false)  witness, 
one  quarter  on  all  the  judges,  one  quarter  on  the  king. 

19.  But  where  he  who  is  worthy  of  condemnation  is  condemned, 
the  king  is  free  from  guilt,  and  the  judges  are  saved  (from  sin) ; 
the  guilt  falls  on  the  perpetrator  (of  the  crime  alone). 

20.  A  Brahmana  who  subsists  only  by  the  name  of  his  caste 
(gati),  or  one  who  merely  calls  himself  a  Brahmana  (though  his 


Chap.  XIX.]  THE   LAWS   OF  MANU  471 

origin  be  uncertain),  may,  at  the  king's  pleasure,  interpret  the  law 
to  him,  but  never  a  Sudra. 

21.  The  kingdom  of  that  monarch,  who  looks  on  while  a  Sudra 
settles  the  law,  will  sink  (low),  like  a  cow  in  a  morass. 

22.  That  kingdom  where  Sudras  are  very  numerous,  which  is 
infested  by  atheists  and  destitute  of  twice-born  (inhabitants), 
soon  entirely  perishes,  afflicted  by  famine  and  disease. 

23.  Having  occupied  the  seat  of  justice,  having  covered  his 
body,^and  having  worshipped  the  guardian  deities  of  the  world, 
let  himj  with  a  collected  mind,  begin  the  trial  of  causes. 

24.  Knowing  what  is  expedient  or  inexpedient,  what  is  pure 
justice  or  injustice,  let  him  examine  the  causes  of  suitors  according 
to  the  order  of  the  castes  (varna). 

25.  By  external  signs  let  him  discover  the  internal  disposition 
of  men,  by  their  voice,  their  colour,  their  motions,  their  aspect, 
their  eyes,  and  their  gestures . 

26.  The  internal  (working  of  the)  mind  is  perceived  through  the 
aspect,  the  motions,  the  gait,  the  gestures,  the  speech,  and  the 
changes  in  the  eye  and  of  the  face. 

27.  The  king  shall  protect  the  inherited  (and  other)  property 
of  a  minor,  until  he  has  returned  (from  his  teacher's  house)  or 
until  he  has  passed  his  minority. 

28.  In  hke  manner  care  must  be  taken  of  barren  women,  of 
those  who  have  no  sons,  of  those  whose  family  is  extinct,  of  wives 
and  widows  faithful  to  their  lords,  and  of  women  afflicted  with 
diseases. 

29.  A  righteous  king  must  punish  like  thieves  those  relatives 
who  appropriate  the  property  of  such  females  during  their  lifetime. 

30.  Property,  the  owner  of  which  has  disappeared,  the  king 
shall  cause  to  be  kept  as  a  deposit  during  three  years ;  within  the 
period  of  three  years  the  owner  may  claim  it,  after  (that  term) 
the  king  may  take  it. 

31.  He  who  says  "That  belongs  to  me,"  must  be  examined 
according  to  the  rule;  if  he  accurately  describes  the  shape,  and 
the  number  (of  the  articles  found)  and  so  forth,  (he  is)  the  owner, 
(and)  ought  (to  receive)  the  property. 

32.  But  if  he  does  not  really  know  the  time  and  the  place  (where 
it  was)  lost,  its  colour,  shape,  and  size,  he  is  worthy  of  a  fine  equal 
(in  value)  to  the  (object  claimed). 

33.  Now  the  king,  remembering  the  duty  of  good  men,  may  take 
one-sixth  part  of  property  lost  and  afterwards  found,  or  one- 
tenth,  or  at  least  one-twelfth. 


472  ANCIENT   AND   PRIMITIVE   LAWS   AND   CODES  [Pabt  III. 

34.  Property  lost  and  afterwards  found  (by  the  king's  servants) 
shall  remain  in  the  keeping  of  (special)  officials ;  those  whom  the 
king  may  convict  of  steaHng  it,  he  shall  cause  to  be  slain  by  an 
elephant. 

35.  From  that  man  who  shall  truly  say  with  respect  to  treasure- 
trove,  "This  belongs  to  me,"  the  king  may  take  one-sixth  or  one- 
twelfth  part. 

36.  But  he  who  falsely  says  (so),  shall  be  fined  in  one-eighth 
of  his  property,  or,  a  calculation  of  (the  value  of)  the  treasure 
having  been  made,  in  some  smaller  portion  (of  that) . 

37.  When  a  learned  Brahmana  has  found  treasure,  deposited 
in  former  (times),  he  may  take  even  the  whole  (of  it) ;  for  he  is 
master  of  everything. 

38.  When  the  king  finds  treasure  of  old  concealed  in  the  ground, 
let  him  give  one  half  to  Brahmanas  and  place  the  (other)  half  in 
his  treasury. 

39.  The  king  obtains  one  half  of  ancient  hoards  and  metals 
(found)  in  the  ground,  by  reason  of  (his  giving)  protection,  (and) 
because  he  is  the  lord  of  the  soil. 

40.  Property  stolen  by  thieves  must  be  restored  by  the  king 
to  (men  of)  all  castes  (varna) ;  a  king  who  uses  such  (property) 
for  himself  incurs  the  guilt  of  a  thief. 

41.  (A  king)  who  knows  the  sacred  law,  must  inquire  into  the 
laws  of  castes  (gati),  of  districts,  of  guilds,  and  of  famihes,  and 
(thus)  settle  the  peculiar  law  of  each. 

42.  For  men  who  follow  their  particular  occupations  and  abide 
by  their  particular  duty,  become  dear  to  people,  though  they  may 
live  at  a  distance. 

43.  Neither  the  king  nor  any  servant  of  his  shall  themselves 
cause  a  lawsuit  to* be  begun,  or  hush  up  one  that  has  been  brought 
(before  them)  by  (some)  other  (man) . 

44.  As  a  hunter  traces  the  lair  of  a  (wounded)  deer  by  the  drops 
of  blood,  even  so  the  king  shall  discover  on  which  side  the  right 
lies,  by  inferences  (from  the  facts). 

45.  When  engaged  in  judicial  proceedings  he  must  pay  full 
attention  to  the  truth,  to  the  object  (of  the  dispute),  (and)  to 
himself,  next  to  the  witnesses,  to  the  place,  to  the  time,  and  to  the 
aspect. 

46.  What  may  have  been  practised  by  the  virtuous,  by  such 
twice-born  men  as  are  devoted  to  the  law,  that  he  shall  establish 
as  law,  if  it  be  not  opposed  to  the  (customs  of)  countries,  famihes, 
and  castes  (gati). 


\p.  XIX.l  THE   LAWS  OF  MANU  473 

47.  When  a  creditor  sues  (before  the  king)  for  the  recovery  of 
money  from  a  debtor,  let  him  make  the  debtor  pay  the  sum  which 
the  creditor  proves  (to  be  due). 

48.  By  whatever  means  a  creditor  may  be  able  to  obtain 
possession  of  his  property,  even  by  those  means  may  he  force  the 
debtor  and  make  him  pay. 

49.  By  moral  suasion,  by  suit  of  law,  by  artful  management, 
or  by  the  customary  proceeding,  a  creditor  may  recover  property 
lent ;   and  fifthly,  by  force. 

50.  A  creditor  who  himself  recovers  his  property  from  his  debtor, 
must  not  be  blamed  by  the  king  for  retaking  what  is  his  own. 

51 .  But  him  who  denies  a  debt  which  is  proved  by  good  evidence, 
he  shall  order  to  pay  that  debt  to  the  creditor  and  a  small  fine 
according  to  his  circumstances. 

52.  On  the  denial  (of  a  debt)  by  a  debtor  who  has  been  required 
in  court  to  pay  it,  the  complainant  must  call  (a  witness)  who  was 
present  (when  the  loan  was  made),  or  adduce  other  evidence. 

53.  (The  plaintiff)  who  calls  a  witness  not  present  at  the  trans- 
action, who  retracts  his  statements,  or  does  not  perceive  that  his 
statements  (are)  confused  or  contradictory; 

54.  Or  who  having  stated  what  he  means  to  prove  afterwards 
varies  (his  case),  or  who  being  questioned  on  a  fact  duly  stated 
by  himself  does  not  abide  by  it ; 

55.  Or  who  converses  with  the  witnesses  in  a  place  improper 
for  such  conversation;  or  who  declines  to  answer  a  question, 
properly  put,  or  leaves  (the  court) ; 

56.  Or  who,  being  ordered  to  speak,  does  not  answer,  or  does 
not  prove  what  he  has  alleged ;  or  who  does  not  know  what  is  the 
first  (point),  and  what  the  second,  fails  in  his  suit. 

57.  Him  also  who  says  "I  have  witnesses,"  and,  being  ordered 
to  produce  them,  produces  them  not,  the  judge  must  on  these 
(same)  grounds  declare  to  be  non-suited. 

58.  If  a  plaintiff  does  not  speak,  he  may  be  punished  cor- 
porally or  fined  according  to  the  law ;  if  (a  defendant)  does  not 
plead  within  three  fortnights,  he  has  lost  his  cause. 

59.  In  the  double  of  that  .sum  which  (a  defendant)  falsely 
denies  or  on  which  (the  plaintiff)  falsely  declares,  shall  those  two 
(men)  offending  against  justice  be  fined  by  the  king. 

60.  (A  defendant)  who,  being  brought  (into  court)  by  the  credi- 
tor, (and)  being  questioned,  denies  (the  debt)  shall  be  convicted 
(of  his  falsehood)  by  at  least  three  witnesses  (who  must  depose)  in 
the  presence  of  the  Brahmana  (appointed  by)  the  king. 


474  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

61.  I  will  fully  declare  what  kind  of  men  may  be  made  witnesses 
in  suits  by  creditors,  and  in  what  manner  those  (witnesses)  must 
give  true  (evidence). 

62.  Householders,  men  with  male  issue,  and  indigenous  (inhab- 
itants of  the  country,  be  they)  Kshatriyas,  Vaisyas,  or  Sudras, 
are  competent,  when  called  by  a  suitor,  to  give  evidence,  not  any 
persons  whatever  (their  condition  may  be)  except  in  cases  of 
urgency. 

63.  Trustworthy  men  of  all  the  (four)  castes  (varna)  may  be 
made  witnesses  in  lawsuits,  (men)  who  know  (their)  whole  duty, 
and  are  free  from  covetousness ;  but  let  him  reject  those  (of  an) 
opposite  (character). 

64.  Those  must  not  be  made  (witnesses)  who  have  an  interest 
in  the  suit,  nor  famiUar  (friends),  companions,  and  enemies  (of 
the  parties),  nor  (men)  formerly  convicted  (of  perjury),  nor 
(persons)  suffering  under  (severe)  illness,  nor  (those)  tainted  (by 
mortal  sin). 

65.  The  king  cannot  be  made  a  witness,  nor  mechanics  and 
actors,  nor  a  Srotriya,  nor  a  student  of  the  Veda,  nor  (an  ascetic) , 
who  has  given  up  (all)  connexion  (with  the  world) . 

66.  Nor  one  wholly  dependent,  nor  one  of  bad  fame,  nor  a 
Dasyu,  nor  one  who  follows  forbidden  occupations,  nor  an  aged 
(man),  nor  an  infant,  nor  one  (man  alone),  nor  a  man  of  the  lowest 
castes,  nor  one  deficient  in  organs  of  sense. 

67.  Nor  one  extremely  grieved,  nor  one  intoxicated,  nor  a  mad- 
man, nor  one  tormented  by  hunger  or  thirst,  nor  one  oppressed 
by  fatigue,  nor  one  tormented  by  desire,  nor  a  wrathful  man,  nor  a 
thief. 

68.  Women  should  give  evidence  for  women,  and  for  twice- 
born  men  twice-born  men  (of  the)  same  (kind),  virtuous  Sudras 
for  Sudras,  and  men  of  the  lowest  castes  for  the  lowest. 

69.  But  any  person  whatsoever,  who  has  personal  knowledge 
(of  an  act  committed)  in  the  interior  apartments  (of  a  house),  or 
in  a  forest,  or  of  (a  crime  causing)  loss  of  life,  may  give  evidence 
between  the  parties. 

70.  On  failure  (of  qualified  witnesses,  evidence)  may  be  given 
(in  such  cases)  by  a  woman,  by  an  infant,  by  an  aged  man,  by  a 
pupil,  by  a  relative,  by  a  slave,  or  by  a  hired  servant. 

71.  But  the  (judge)  should  consider  the  evidence  of  infants, 
aged  and  diseased  men,  who  (are  apt  to)  speak  untruly,  as  untrust- 
worthy, Hkewise  that  of  men  with  disordered  minds. 

72.  In  all  cases  of  violence,  of  theft  and  adultery,  of  defamation 


Chap.  XIX.]  THE   LAWS  OF  MANU  475 

and  assault,  he  must  not  examine  the  (competence  of)  witnesses 
(too  strictly). 

73.  On  a  conflict  of  the  witnesses  the  king  shall  accept  (as  true) 
the  (evidence  of  the)  majority;  if  (the  conflicting  parties  are) 
equal  in  number,  (that  of)  those  distinguished  by  good  qualities  ; 
on  a  difference  between  (equally)  distinguished  (witnesses,  that  of) 
the  best  among  the  twice-born. 

74.  Evidence  in  accordance  with  what  has  actually  been  seen 
or  heard,  is  admissible ;  a  witness  who  speaks  truth  in  those  (cases), 
neither  loses  spiritual  merit  nor  wealth. 

75.  A  witness  who  deposes  in  an  assembly  of  honourable  men 
(Arya)  anything  else  but  what  he  has  seen  or  heard,  falls  after 
death  headlong  into  hell  and  loses  heaven. 

76.  When  a  man  (originally)  not  appointed  to  be  a  witness 
sees  or  hears  anything  and  is  (afterwards)  examined  regarding  it, 
he  must  declare  it  (exactly)  as  he  saw  or  heard  it. 

77.  One  man  who  is  free  from  covetousness  may  be  (accepted 
as)  witness ;  but  not  even  many  pure  women,  because  the  under- 
standing of  females  is  apt  to  waver,  nor  even  many  other  men, 
who  are  tainted  with  sin. 

78.  What  witnesses  declare  quite  naturally,  that  must  be  re- 
ceived on  trials ;  (depositions)  differing  from  that,  which  they 
make  improperly,  are  worthless  for  (the  purposes  of)  justice. 

79.  The  witnesses  being  assembled  in  the  court  in  the  presence 
of  the  plaintiff  and  of  the  defendant,  let  the  judge  examine  them, 
kindly  exhorting  them  in  the  following  manner  : 

80.  "What  ye  know  to  have  been  mutually  transacted  in  this 
matter  between  the  two  men  before  us,  declare  all  that  in  accord- 
ance with  the  truth ;  for  ye  are  witnesses  in  this  (cause) . 

81.  "A  witness  who  speaks  the  truth  in  his  evidence,  gains 
(after  death)  the  most  excellent  regions  (of  bliss)  and  here  (below) 
unsurpassable  fame;  such  testimony  is  revered  by  Brahman 
(himself) . 

82.  "He  who  gives  false  evidence  is  firmly  bound  by  Varuna's 
fetters,  helpless  during  one  hundred  existences ;  let  (men  therefore) 
give  true  evidence. 

83.  "By  truthfulness  a  witness  is  purified,  through  truthfulness 
his  merit  grows;  truth  must,  therefore,  be  spoken  by  witnesses 
of  all  castes  (varna). 

84.  "The  Soul  itself  is  the  witness  of  the  Soul,  and  the  Soul 
is  the  refuge  of  the  Soul ;  despise  not  thy  own  Soul,  the  supreme 
witness  of  men. 


476  ANCIENT   AND   PRIMITIVE    LAWS   AND   CODES  [Part  III. 

85.  "The  wicked,  indeed,  say  in  their  hearts,  'Nobody  sees 
us ' ;  but  the  gods  distinctly  see  them  and  the  male  within  their 
own  breasts. 

86.  "The  sky,  the  earth,  the  waters,  (the  male  in)  the  heart, 
the  moon,  the  sun,  the  fire,  Yama,  and  the  wind,  the  night,  the 
two  twilights,  and  justice  know  the  conduct  of  all  corporeal 
beings." 

87.  The  (judge),  being  purified,  shall  ask  in  the  forenoon  the 
twice-born  (witnesses)  who  (also  have  been)  purified,  (and  stand) 
facing  the  north  or  the  east,  to  give  true  evidence  in  the  presence 
of  (images  of)  the  gods  and  of  Brahmanas. 

88.  Let  him  examine  a  Brahmana  (beginning  with)  "Speak," 
a  Kshatriya  (beginning  with)  "Speak  the  truth,"  a  Vaisya  (ad- 
monishing him)  by  (mentioning)  his  kine,  grain,  and  gold,  a  Sudra 
(threatening  him)  with  (the  guilt  of)  every  crime  that  causes  loss 
of  caste ;  . 

89.  (Saying),  "Whatever  places  (of  torment)  are  assigned 
(by  the  sages)  to  the  slayer  of  a  Brahmana,  to  the  murderer  of 
women  and  children,  to  him  who  betrays  a  friend,  and  to  an  un- 
grateful man,  those  shall  be  thy  (portion),  if  thou  speakest  falsely. 

90.  "(The  reward)  of  all  meritorious  deeds  which  thou,  good 
man,  hast  done  since  thy  birth,  shall  become  the  share  of  the  dogs, 
if  in  thy  speech  thou  departest  from  the  truth. 

91.  "If  thou  thinkest,  O  friend  of  virtue,  with  respect  to  thy- 
self, 'I  am  alone,'  (know  that)  that  sage  who  witnesses  all  virtuous 
acts  and  all  crimes,  ever  resides  in  thy  heart. 

92.  "  If  thou  art  not  at  variance  with  that  divine  Yama,  the  son 
of  Vivasvat,  who  dwells  in  thy  heart,  thou  needest  neither  visit 
the  Ganges  nor  the  (land  of  the)  Kurus. 

93.  "Naked  and  shorn,  tormented  with  hunger  and  thirst,  and 
deprived  of  sight,  shall  the  man  who  gives  false  evidence,  go  with  a 
potsherd  to  beg  food  at  the  door  of  his  enemy. 

94.  "Headlong,  in  utter  darkness •  shall  the  sinful  man  tumble 
into  hell,  who  being  interrogated  in  a  judicial  inquiry  answers  one 
question  falsely. 

95.  "That  man  who  in  a  court  (of  justice)  gives  an  untrue 
account  of  a  transaction  (or  asserts  a  fact)  of  which  he  was  not  an 
eye-witness,  resembles  a  blind  man  who  swallows  fish  with  the 
bones. 

96.  "The  gods  are  acquainted  with  no  better  man  in  this  world 
than  him,  of  whom  his  conscious  Soul  has  no  distrust,  when  he 
gives  evidence. 


1^^ 


AP.  XIX.]  THE    LAWS    OF   MANU  477 

97.  "Learn  now,  O  friend,  from  an  enumeration  In  due  order, 
how  many  relatives  he  destroys  who  gives  false  evidence  in  several 
particular  cases. 

98.  "He  kills  five  by  false  testimony  regarding  (small)  cattle, 
he  kills  ten  by  false  testimony  regarding  kine,  he  kills  a  hundred  by 
false  evidence  concerning  horses,  and  a  thousand  by  false  evidence 
concerning  men. 

99.  "  By  speaking  falsely  in  a  cause  regarding  gold,  he  kills  the 
born  and  the  unborn ;  by  false  evidence  concerning  land,  he  kills 
everything ;  beware,  therefore,  of  false  evidence  concerning  land. 

100.  "They  declare  (false  evidence)  concerning  water,  concern- 
ing the  carnal  enjoyment  of  women,  and  concerning  all  gems,  pro- 
duced in  water,  or  consisting  of  stones  (to  be)  equally  (wicked)  as  a 
lie  concerning  land. 

101.  "Marking  well  all  the  evils  (which  are  produced)  by  per- 
jury, declare  thou  openly  everything  as  (thou  hast)  heard  or  seen 

(it)." 

ip      102.   Brahmanas  who  tend  cattle,  who  trade,  who  are  mechanics, 
'     actors  (or  singers),  menial  servants  or  usurers,  the  (judge)  shall 

treat  like  Sudras. 
1^1     103.   In  (some)  cases  a  man  who,  though  knowing  (the  facts  to 
be)  different,  gives  such  (false  evidence)  from  a  pious  motive,  does 
not  lose  heaven ;  such  (evidence)  they  call  the  speech  of  the  gods. 

104.  Whenever  the  death  of  a  Sudra,  of  a  Vaisya,  of  a  Ksha- 
triya,  or  of  a  Brahmana  would  be  (caused)  by  a  declaration  of 
the  truth,  a  falsehood  may  be  spoken;  for  such  (falsehood)  is 
preferable  to  the  truth. 

105.  Such  (witnesses)  must  offer  to  Sarasvati  oblations  of 
boiled  rice  (karu)  which  are  sacred  to  the  goddess  of  speech,  (thus) 
performing  the  best  penance  in  order  to  expiate  the  guilt  of  that 
falsehood. 

106.  Or  such  (a  witness)  may  offer  according  to  the  rule  clarified 
butter  in  the  fire,  reciting  the  Kushmanda  texts,  or  the  Rik 
sacred  to  Varuna,  "  Untie,  O  Varuna,  the  uppermost  fetter ;  "  or 
the  three  verses  addressed  to  the  Waters. 

107.  A  man  who,  without  being  ill,  does  not  give  evidence  in 
(cases  of)  loans  and  the  like  within  three  fortnights  (after  the 
summons),  shall  become  responsible  for  the  whole  debt  and  (pay) 
a  tenth  part  of  the  whole  (as  a  fine  to  the  king) . 

108.  The  witness  to  whom,  within  seven  days  after  he  has  given 
evidence,  happens  (a  misfortune  through)  sickness,  a  fire,  or  the 
death  of  a  relative,  shall  be  made  to  pay  the  debt  and  a  fine. 


478  ANCIENT   AND   PRIMITIVE    LAWS   AND    CODES  [Part  III. 

109.  If  two  (parties)  dispute  about  matters  for  which  no  wit- 
nesses are  available,  and  the  (judge)  is  unable  to  really  ascertain 
the  truth,  he  may  cause  it  to  be  discovered  even  by  an  oath. 

110.  Both  by  the  great  sages  and  the  gods  oaths  have  been 
taken  for  the  purpose  of  (deciding  doubtful)  matters;  and 
Vasishtha  even  swore  an  oath  before  king  (Sudas),  the  son  of 
Pigavana. 

ill.  Let  no  wise  man  swear  an  oath  falsely,  even  in  a  trifling 
matter ;  for  he  who  swears  an  oath  falsely  is  lost  in  this  (world) 
and  after  death. 

112.  No  crime,  causing  loss  of  caste,  is  committed  by  swearing 
(falsely)  to  women,  the  objects  of  one's  desire,  at  marriages,  for 
the  sake  of  fodder  for  a  cow,  or  of  fuel,  and  in  (order  to  show) 
favour  to  a  Brahmana. 

113.  Let  the  (judge)  cause  a  Brahmana  to  swear  by  his  veracity, 
a  Kshatriya  by  his  chariot  or  the  animal  he  rides  on  and  by  his 
weapons,  a  Vaisya  by  his  kine,  grain,  and  gold,  and  a  Sudra  by 
(imprecating  on  his  own  head  the  guilt)  of  all  grievous  offences 
(pataka). 

114.  Or  the  (judge)  may  cause  the  (party)  to  carry  fire  or  to 
<iive  under  water,  or  severally  to  touch  the  heads  of  his  wives  and 
children. 

115.  He  whom  the  blazing  fire  burns  not,  whom  the  water 
forces  not  to  come  (quickly)  up,  who  meets  with  no  speedy  mis- 
fortune, must  be  held  innocent  on  (the  strength  of)  his  oath. 

116.  For  formerly  when  Vatsa  was  accused  by  his  younger 
brother,  the  fire,  the  spy  of  the  world,  burned  not  even  a  hair 
(of  his)  by  reason  of  his  veracity. 

117.  Whenever  false  evidence  has  been  given  in  any  suit,  let 
the  (judge)  reverse  the  judgment,  and  whatever  has  been  done 
must  be  (considered  as)  undone. 

118.  Evidence  (given)  from  covetousness,  distraction,  terror, 
friendship,  lust,  wrath,  ignorance,  and  childishness  is  declared 
(to  be)  invalid. 

119.  I  will  propound  in  (due)  order  the  particular  punishments 
for  him  who  gives  false  evidence  from  any  one  of  these  motives. 

120.  (He  who  commits  perjury)  through  covetousness  shall  be 
fined  one  thousand  (panas),  (he  who  does  it)  through  distraction, 
in  the  lowest  amercement;  (if  a  man  does  it)  through  fear,  two 
middling  amercements  shall  be  paid  as  a  fine,  (if  he  does  it)  through 
friendship,  four  times  the  amount  of  the  lowest  (amercement). 

121.  (He  who  does  it)  through  lust,  (shall  pay)  ten  times  the 


Chap.  XIX.]  THE   LAWS  OF  MANU  479 

lowest  amercement,  but  (he  who  does  it)  through  wrath,  three 
times  the  next  (or  second  amercement) ;  (he  who  does  it)  through 
ignorance,  two  full  hundreds,  but  (he  who  does  it)  through  childish- 
ness, one  hundred  (panas). 

122.  They  declare  that  the  wise  have  prescribed  these  fines 
for  perjury,  in  order  to  prevent  a  failure  of  justice,  and  in  order 
to  restrain  injustice. 

123.  But  as  a  just  king  shall  fine  and  banish  (men  of)  the  three 
(lower)  castes  (varna)  who  have  given  false  evidence,  but  a  Brah- 
mana  he  shall  (only)  banish. 

124.  Manu,  the  son  of  the  Self -existent  (Svayambhu),  has 
named  ten  places  on  which  punishment  may  be  (made  to  fall) 
in  the  cases  of  the  three  (lower)  castes  (varna) ;  but  a  Brahmana 
shall  depart  unhurt  (from  the  country). 

125.  (These  are)  the  organ,  the  belly,  the  tongue,  the  two  hands, 
and  fifthly  the  two  feet,  the  eye,  the  nose,  the  two  ears,  likewise 
the  (whole)  body. 

126.  Let  the  (king),  having  fully  ascertained  the  motive,  the 
time  and  place  (of  the  offence),  and  having  considered  the  ability 
(of  the  criminal  to  suffer)  and  the  (nature  of  the)  crime,  cause 
punishment  to  fall  on  those  who  deserve  it. 

127.  Unjust  punishment  destroys  reputation  among  men, 
and  fame  (after  death),  and  causes  even  in  the  next  world  the  loss 
of  heaven ;  let  him,  therefore,  beware  of  (inflicting)  it. 

128.  A  king  who  punishes  those  who  do  not  deserve  it,  and 
punishes  not  those  who  deserve  it,  brings  great  infamy  on  himself 
and  (after  death)  sinks  into  hell. 

129.  Let  him  punish  first  by  (gentle)  admonition,  afterwards  by 
(harsh)  reproof,  thirdly  by  a  fine,  after  that  by  corporal  chastisement. 

130.  But  when  he  cannot  restrain  such  (offenders)  even  by 
corporal  punishment,  then  let  him  apply  to  them  even  all  the 
four  (modes  conjointly). 

131.  Those  technical  names  of  (certain  quantities  of)  copper, 
silver,  and  gold,  which  are  generally  used  on  earth,  for  the  purpose 
of  business  transactions  among  men,  I  will  fully  declare. 

•  132.  The  very  small  mote  which  is  seen  when  the  sun  shines 
through  a  lattice,  they  declare  (to  be)  the  least  of  (all)  quantities 
and  (to  be  called)  a  trasarenu  (a  floating  particle  of  dust) . 

133.  Know  (that)  eight  trasarenus  (are  equal)  in  bulk  (to)  a 
liksha  (the  egg  of  a  louse),  three  of  those  to  one  grain  of  black 
mustard  (ragasarshapa),  and  three  of  the  latter  to  a  white  mustard- 
seed. 


480  ANCIENT  AND   PRIMITIVE   LAWS   AND   CODES  [Part  III. 

134.  Six  grains  of  white  mustard  are  one  middle-sized  barley- 
corn, and  three  barley-corns  one  krishnala  (rahtika,  or  gunga- 
berry) ;  five  krishnalas  are  one  masha  (bean),  and  sixteen  of  those 
one  suvarna. 

135.  Four  suvarnas  are  one  pala,  and  ten  palas  one  dharana ; 
two  krishnalas  (of  silver),  weighed  together,  must  be  considered 
one  mashaka  of  silver. 

136.  Sixteen  of  those  make  a  silver  dharana,  or  purana;  but 
know  (that)  a  karsha  of  copper  is  a  karshapana,  or  pana. 

137.  Know  (that)  ten  dharanas  of  silver  make  one  satamana; 
four  suvarnas  must  be  considered  (equal)  in  weight  to  a  nishka. 

138.  Two  hundred  and  fifty  panas  are  declared  (to  be)  the  first 
(or  lowest)  amercement,  five  (hundred)  are  considered  as  the  mean 
(or  middlemost),  but  one  thousand  as  the  highest. 

139.  A  debt  being  admitted  as  due,  (the  defendant)  shall  pay 
five  in  the  hundred  (as  a  fine),  if  it  be  denied  (and  proved)  twice 
as  much ;  that  is  the  teaching  of  Manu. 

140.  A  money-lender  may  stipulate  as  an  increase  of  his  capital, 
for  the  interest,  allowed  by  Vasishtha,  and  take  monthly  the 
eightieth  part  of  a  hundred. 

141.  Or,  remembering  the  duty  of  good  men,  he  may  take  two 
in  the  hundred  (by  the  month) ,  for  he  who  takes  two  in  the  hundred 
becomes  not  a  sinner  for  gain. 

142.  Just  two  in  the  hundred,  three,  four,  and  five  (and  not 
more),  he  may  take  as  monthly  interest  according  to  the  order  of 
the  castes  (varna). 

143.  But  if  a  beneficial  pledge  {i.e.  one  from  which  profit 
accrues,  has  been  given),  he  shall  receive  no  interest  on  the  loan ; 
nor  can  he,  after  keeping  (such)  a  pledge  for  a  very  long  time,  give 
or  sell  it. 

144.  A  pledge  (to  be  kept  only)  must  not  be  used  by  force, 
(the  creditor),  so  using  it,  shall  give  up  his  (whole)  interest,  or, 
(if  it  has  been  spoilt  by  use)  he  shall  satisfy  the  (owner)  by 
(paying  its)  original  price;  else  he  commits  a  theft  of  the 
pledge. 

145.  Neither  a  pledge  nor  a  deposit  can  be  lost  by  lapse  of 
time ;  they  are  both  recoverable,  though  they  have  remained  long 
(with  the  bailee) . 

146.  Things  used  with  friendly  assent,  a  cow,  a  camel,  a  riding- 
horse,  and  (a  beast)  made  over  for  breaking  in,  are  never  lost 
(to  the  owner) . 

147.  (But  in  general)  whatever  (chattel)  an  owner  sees  enjoyed 


Chap.  XIX.J  THE   LAWS   OF  MANU  481 

by  others  during  ten  years,  while,  though  present,  he  says  nothing, 
that  (chattel)  he  shall  not  recover. 

148.  If  (the  owner  is)  neither  an  idiot  nor  a  minor  and  if  (his 
chattel)  is  enjoyed  (by  another)  before  his  eyes,  it  is  lost  to  him 
by  law ;  the  adverse  possessor  shall  retain  that  property. 

149.  A  pledge,  a  boundary,  the  property  of  infants,  an  (open) 
deposit,  a  sealed  deposit,  women,  the  property  of  the  king  and  the 
wealth  of  a  Srotriya  was  not  lost  in  consequence  of  (adverse) 
enjoyment. 

150.  The  fool  who  uses  a  pledge  without  the  permission  of  the 
owner,  shall  remit  half  of  his  interest,  as  a  compensation  for  (such) 
use. 

151.  In  money  transactions  interest  paid  at  one  time  (not  by 
instalments)  shall  never  exceed  the  double  (of  the  principal) ; 
on  grain,  fruit,  wool  or  hair,  (and)  beasts  of  burden  it  must  not  be 
more  than  five  times  (the  original  amount) . 

152.  Stipulated  interest  beyond  the  legal  rate,  being  against 
(the  law),  cannot  be  recovered ;  they  call  that  a  usurious  way  (of 
lending) ;  (the  lender)  is  (in  no  case)  entitled  to  (more  than) 
five  in  the  hundred. 

153.  Let  him  not  take  interest  beyond  the  year,  nor  such  as  is 
unapproved,  nor  compound  interest,  periodical  interest,  stipu- 
lated interest,  and  corporal  interest. 

154.  He  who,  unable  to  pay  a  debt  (at  the  fixed  time),  wishes 
to  make  a  new  contract,  may  renew  the  agreement,  after  paying 
the  interest  which  is  due. 

155.  If  he  cannot  pay  the  money  (due  as  interest),  he  may 
insert  it  in  the  renewed  (agreement) ;  he  must  pay  as  much  interest 
as  may  be  due. 

156.  He  who  has  made  a  contract  to  carry  goods  by  a  wheeled 
carriage  for  money  and  has  agreed  to  a  certain  place  or  time,  shall 
not  reap  that  reward,  if  he  does  not  keep  to  the  place  and  the  time 
(stipulated) . 

157.  Whatever  rate  men  fix,  who  are  expert  in  sea-voyages 
and  able  to  calculate  (the  profit)  according  to  the  place,  the  time, 
and  the  objects  (carried),  that  (has  legal  force)  in  such  cases  with 
respect  to  the  payment  (to  be  made) . 

158.  The  man  who  becomes  a  surety  in  this  (world)  for  the  ap- 
pearance of  a  (debtor),  and  produces  him  not,  shall  pay  the  debt 
out  of  his  own  property. 

159.  But  money  due  by  a  surety,  or  idly  promised,  or  lost  at 
play,  or  due  for  spirituous  liquor,  or  what  remains  unpaid  of  a  fine 


482  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

and  a  tax  or  duty,  the  son  (of  the  party  owing  it)  shall  not  be 
obliged  to  pay. 

160.  This  just  mentioned  rule  shall  apply  to  the  case  of  a  surety 
for  appearance  (only) ;  if  a  surety  for  payment  should  die,  the 
(judge)  may  compel  even  his  heirs  to  discharge  the  debt. 

161.  On  what  account  then  is  it  that  after  the  death  of  a  surety 
other  than  for  payment,  whose  affairs  are  fully  known,  the  cred- 
itor may  (on  some  cases)  afterwards  demand  the  debt  (of  the 
heirs)  ? 

162.  If  the  surety  had  received  money  (from  him  for  whom  he 
stood  bail)  and  had  money  enough  (to  pay),  then  (the  heir  of  him) 
who  received  it,  shall  pay  (the  debt)  out  of  his  property ;  that  is 
the  settled  rule. 

163.  A  contract  made  by  a  person  intoxicated,  or  insane,  or 
grievously  disordered  (by  disease  and  so  forth),  or  wholly  depend- 
ent, by  an  infant  or  very  aged  man,  or  by  an  unauthorized 
(party)  is  invalid. 

164.  That  agreement  which  has  been  made  contrary  to  the  law 
or  to  the  settled  usage  (of  the  virtuous),  can  have  no  legal  force, 
though  it  be  established  (by  proofs). 

165.  A  fraudulent  mortgage  or  sale,  a  fraudulent  gift  or  accept- 
ance, and  (any  transaction)  where  he  detects  fraud,  the  (judge) 
shall  declare  null  and  void. 

166.  If  the  debtor  be  dead  and  (the  money  borrowed)  was  ex- 
pended for  the  family,  it  must  be  paid  by  the  relatives  out  of  their 
own  estate  even  if  they  are  divided. 

167.  Should  even  a  person  wholly  dependent  make  a  contract 
for  the  behoof  of  the  family,  the  master  (of  the  house),  whether 
(living)  in  his  own  country  or  abroad,  shall  not  rescind  it. 

168.  What  is  given  by  force,  what  is  enjoyed  by  force,  also 
what  has  been  caused  to  be  written  by  force,  and  all  other  transac- 
tions done  by  force,  Manu  has  declared  void. 

169.  Three  suffer  for  the  sake  of  others,  witnesses,  a  surety 
and  judges;  but  four  enrich  themselves  (through  others),  a 
Erahmana,  a  money-lender,  a  merchant,  and  a  king. 

170.  No  king,  however  indigent,  shall  take  anything  that 
ought  not  to  be  taken,  nor  shall  he,  however  wealthy,  decline 
taking  that  which  he  ought  to  take,  be  it  ever  so  small. 

171.  In  consequence  of  his  taking  what  ought  not  to  be  taken, 
or  of  his  refusing  what  ought  to  be  received,  a  king  will  be  accused 
of  weakness  and  perish  in  this  (world)  and  after  death. 

172.  By  taking  his  due,  by  preventing  the  confusion  of  the 


lAP.  XIX.]  THE    LAWS   OF   MANU  48S 

castes  (varna),  and  by  protecting  the  weak,  the  power  of  the  king 
grows,  and  he  prospers  in  this  (world)  and  after  death. 

173.  Let  the  prince,  therefore,  Hke  Yama,  not  heeding  his  own 
Hkings  and  disUkings,  behave  exactly  like  .Yama,  suppressing  his 
anger  and  controlling  himself. 

174.  But  that  evil-minded  king  who  in  his  folly  decides  causes 
unjustly,  his  enemies  soon  subjugate. 

175.  If,  subduing  love  and  hatred,  he  decides  the  causes  ac- 
cording to  the  law,  (the  hearts  of)  his  subjects  turn  towards  him  as 
the  rivers  (run)  towards  the  ocean. 

176.  (The  debtor)  who  complains  to  the  king  that  his  creditor 
recovers  (the  debt)  independently  (of  the  court),  shall  be  com- 
pelled by  the  king  to  pay  (as  a  fine)  one  quarter  (of  the  sum) 
and  to  his  (creditor)  the  money  (due) . 

177.  Even  by  (personal)  labour  shall  the  debtor  make  good 
(what  he  owes)  to  his  creditor,  if  he  be  of  the  same  caste  or  of  a 
lower  one ;  but  a  (debtor)  of  a  higher  caste  shall  pay  it  gradually 
(when  he  earns  something). 

178.  According  to  these  rules  let  the  king  equitably  decide 
between  men,  who  dispute  with  each  other  the  matters,  which  are 
proved  by  witnesses  and  (other)  evidence. 

179.  A  sensible  man  should  make  a  deposit  (only)  with  a  person 
of  (good)  family,  of  good  conduct,  well  acquainted  with  the 
law,  veracious,  having  many  relatives,  wealthy,  and  honourable 
(arya). 

180.  In  whatever  manner  a  person  shall  deposit  anything  in 
the  hands  of  another,  in  the  same  manner  ought  the  same  thing 
to  be  received  back  (by  the  owner) ;  as  the  delivery  (was,  so  must 
be)  the  re-delivery. 

181.  He  who  restores  not  his  deposit  to  the  depositor  at  his 
request,  may  be  tried  by  the  judge  in  the  depositor's  absence. 

182.  On  failure  of  witnesses  let  the  (judge)  actually  deposit 
gold  with  that  (defendant)  under  some  pretext  or  other  through 
spies  of  suitable  age  and  appearance  (and  afterwards  demand  it 
back) . 

183.  If  the  (defendant)  restores  it  in  the  manner  and  shape  in 
which  it  was  bailed,  there  is  nothing  (of  that  description)  in  his 
hands,  for  which  others  accuse  him. 

184.  But  if  he  restores  not  that  gold,  as  he  ought,  to  those 
(spies),  then  he  shall  be  compelled  by  force  to  restore  both  (de- 
posits) ;  that  is  a  settled  rule  of  law. 

185.  An  open  or  a  sealed  deposit  must  never  be  returned  to  a 


484  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

near  relative  (of  the  depositor  during  the  latter's  hfetime) ;  for  if 
(the  recipient)  dies  (without  deUvering  them),  they  are  lost,  but  if 
he  does  not  die,  they  are  not  lost. 

186.  But  (a  depositary)  who  of  his  own  accord  returns  them  to 
a  near  relative  of  a  deceased  (depositor),  must  not  be  harassed 
(about  them)  by  the  king  or  by  the  depositor's  relatives. 

187.  And  (in  doubtful  cases)  he  should  try  to  obtain  that  object 
by  friendly  means,  without  (having  recourse  to)  artifice,  or  having 
inquired  into  the  (depositary's)  conduct,  he  should  settle  (the 
matter)  with  gentle  means. 

188.  Such  is  the  rule  for  obtaining  back  all  those  open  de- 
posits; in  the  case  of  a  sealed  deposit  (the  depositary)  shall 
incur  no  (censure),  unless  he  has  taken  out  something. 

189.  (A  deposit)  which  has  been  stolen  by  thieves  or  washed 
away  by  water  or  burned  by  fire,  (the  bailee)  shall  not  make  it 
good,  unless  he  took  part  of  it  (for  himself). 

190.  Him  who  appropriates  a  deposit  and  him  (who  asks  for  it) 
without  having  made  it,  (the  judge)  shall  try  by  all  (sorts  of) 
means,  and  by  the  oaths  prescribed  in  the  Veda. 

191 .  He  who  does  not  return  a  deposit  and  he  who  demands  what 
he  never  bailed  shall  both  be  punished  like  thieves,  or  be  com- 
pelled to  pay  a  fine  equal  (to  the  value  of  the  object  retained  or 
claimed) . 

192.  The  king  should  compel  him  who  does  not  restore  an  open 
deposit,  and  in  like  manner  him  who  retains  a  sealed  deposit, 
to  pay  a  fine  equal  (to  its  value). 

193.  That  man  w^ho  by  false  pretences  may  possess  himself  of 
another's  property,  shall  be  publicly  punished  by  various  (modes 
of)  corporal  (or  capital)  chastisement,  together  with  his  accomplices. 

194.  If  a  deposit  of  a  particular  description  or  quantity  is 
bailed  by  anybody  in  the  presence  of  a  number  (of  witnesses)  it 
must  be  known  to  be  of  that  particular  (description  and  quantity ; 
the  depositary)  who  makes  a  false  statement  (regarding  it)  is 
liable  to  a  fine. 

195.  But  if  anything  is  delivered  or  received  privately,  it  must 
be  privately  returned;  as  the  bailment  (was,  so  should  be)  the 
re-delivery. 

196.  Thus  let  the  king  decide  (causes)  concerning  a  deposit 
and  a  friendly  loan  (for  use)  without  showing  (undue)  rigour  to 
the  depositary. 

197.  If  anybody  sells  the  property  of  another  man,  without 
being  the  owner  and  without  the  assent  of  the  owner,  the  (judge) 


Chap.  XIX.]  THE   LAWS   OF  MANU  485 

shall  not  admit  him  who  is  a  thief,  though  he  may  not  consider 
himself  a  thief,  as  a  witness  (in  any  case). 

198.  If  the  (offender)  is  a  kinsman  (of  the  owner),  he  shall  be 
fined  six  hundred  panas ;  if  he  is  not  a  kinsman,  nor  has  any  excuse, 
he  shall  be  guilty  of  theft. 

199.  A  gift  of  sale,  made  by  anybody  else  but  the  owner,  must 
be  considered  as  null  and  void,  according  to  the  rule  in  judicial 
proceedings. 

200.  Where  possession  is  evident,  but  no  title  is  perceived, 
there  the  title  (shall  be)  a  proof  (of  ownership),  not  possession; 
such  is  the  settled  rule. 

201.  He  who  obtains  a  chattel  in  the  market  before  a  number 
(of  witnesses),  acquires  that  chattel  with  a  clear  legal  title  by 
purchase. 

202.  If  the  original  (seller)  be  not  producible,  (the  buyer)  being 
exculpated  by  a  public  sale,  must  be  dismissed  by  the  king  without 
punishment,  but  (the  former  owner)  who  lost  the  chattel  shall 
receive  it  (back  from  the  buyer). 

203.  One  commodity  mixed  with  another  must  not  be  sold  (as 
pure),  nor  a  bad  one  (as  good),  nor  less  (than  the  proper  quantity  or 
weight),  nor  anything  that  is  not  at  hand  or  that  is  concealed. 

204.  If,  after  one  damsel  has  been  shown,  another  be  given  to 
the  bridegroom,  he  may  marry  them  both  for  the  same  price; 
that  Manu  ordained. 

205.  He  who  gives  (a  damsel  in  marriage),  having  first  openly 
declared  her  blemishes,  whether  she  be  insane,  or  afflicted  with 
leprosy,  or  have  lost  her  virginity,  is  not  liable  to  punishment. 

206.  If  an  officiating  priest,  chosen  to  perform  a  sacrifice, 
abandons  his  work,  a  share  only  (of  the  fee)  in  proportion  to  the 
work  (done)  shall  be  given  to  him  by  those  who  work  with  him. 

207.  But  he  who  abandons  his  work  after  the  sacrificial  fees 
have  been  given,  shall  obtain  his  full  share  and  cause  to  be  per- 
formed (what  remains)  by  another  (priest). 

208.  But  if  (specific)  fees  are  ordained  for  the  several  parts  of 
a  rite,  shall  he  (who  performs  the  part)  receive  them,  or  shall  they 
all  share  them  ? 

209.  The  Adhvaryu  priest  shall  take  the  chariot,  and  the  Brah- 
man at  the  kindling  of  the  fires  (Agnyadhana)  a  horse,  the-  Hotri 
priest  shall  also  take  a  horse  and  the  Udgatri  the  cart,  (used)  when 
(the  Soma)  is  purchased. 

210.  The  (four)  chief  priests  among  all  (the  sixteen),  who  are 
entitled  to  one  half,  shall  receive  a  moiety  (of  the  fee),  the  next 


486  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

(four)  one  half  of  that,  the  set  entitled  to  a  third  share,  one  third, 
and  those  entitled  to  a  fourth  a  quarter. 

211.  By  the  application  of  these  principles  the  allotment  of 
shares  must  be  made  among  those  men  who  here  (below)  perform 
their  work  conjointly. 

212.  Should  money  be  given  (or  promised)  for  a  pious  purpose 
by  one  man  to  another  who  asks  for  it,  the  gift  shall  be  void,  if 
the  (money  is)  afterwards  not  (used)  in  the  manner  (stated). 

213.  But  if  the  (recipient)  through  pride  or  greed  tries  to 
enforce  (the  fulfilment  of  the  promise),  he  shall  be  compelled  by 
the  king  to  pay  one  suvarna  as  an  expiation  for  his  theft. 

214.  Thus  the  lawful  subtraction  of  a  gift  has  been  fully  ex- 
plained ;  I  will  next  propound  (the  law  for)  the  non-payment  of 
wages. 

215.  A  hired  (servant  or  workman)  who,  without  being  ill,, 
out  of  pride  fails  to  perform  his  work  according  to  the  agreement^ 
shall  be  fined  eight  krishnalas  and  no  wages  shall  be  paid  to  him. 

216.  But  (if  he  is  really)  ill,  (and)  after  recovery  performs  (his. 
work)  according  to  the  original  agreement,  he  shall  receive  his 
wages  even  after  (the  lapse  of)  a  very  long  time. 

217.  But  if  he,  whether  sick  or  well,  does  not  (perform  or) 
cause  to  be  performed  (by  others)  his  work  according  to  his  agree- 
ment, the  wages  for  that  work  shall  not  be  given  to  him,  even 
(if  it  be  only)  slightly  incomplete. 

218.  Thus  the  law  for  the  non-payment  of  wages  has  been  com- 
pletely  stated;  I  will  next  explain  the  law  concerning  men  wha 
break  an  agreement. 

219.  If  a  man  belonging  to  a  corporation  inhabiting  a  village 
or  a  district,  after  swearing  to  an  agreement,  breaks  it  through 
avarice,  (the  king)  shall  banish  him  from  his  realm. 

220.  And  having  imprisoned  such  a  breaker  of  an  agreement,, 
he  shall  compel  him  to  pay  six  nishkas,  (each  of)  four  suvarnas,, 
and  one  satamana  of  silver. 

221.  A  righteous  king  shall  apply  this  law  of  fines  in  villages 
and  castes  (gati)  to  those  who  break  an  agreement. 

222.  If  anybody  in  this  (world),  after  buying  or  selling  anything, 
repent  (of  his  bargain),  he  may  return  or  take  (back)  that  chattel 
within  ten  days. 

223.  But  after  (the  lapse  of)  ten  days  he  may  neither  give  nor 
cause  it  to  be  given  (back) ;  both  he  who  takes  it  (back)  and  he 
who  gives  it  (back,  except  by  consent)  shall  be  fined  by  the  king 
six  hundred  (panas). 


Chap.  XIX.]  THE   LAWS  OF  MANU  487 

224.  But  the  king  himself  shall  impose  a  fine  of  ninety-six 
panas  on  him  who  gives  a  blemished  damsel  (to  a  suitor)  without 
informing  (him  of  the  blemish). 

225.  But  that  man  who,  out  of  malice,  says  of  a  maiden,  ''She 
is  not  a  maiden,"  shall  be  fined  one  hundred  (panas),  if  he  cannot 
prove  her  blemish. 

226.  The  nuptial  texts  are  applied  solely  to  virgins,  (and) 
nowhere  among  men  to  females  who  have  lost  their  virginity,  for 
such  (females)  are  excluded  from  religious  ceremonies. 

227.  The  nuptial  texts  are  a  certain  proof  (that  a  maiden  has 
been  made  a  lawful)  wife ;  but  the  learned  should  know  that  they 
(and  the  marriage-ceremony)  are  complete  with  the  seventh 
step  (of  the  bride  around  the  sacred  fire). 

228.  If  anybody  in  this  (world)  repent  of  any  completed  trans- 
actions, (the  king)  shall  keep  him  on  the  road  of  rectitude  in 
accordance  with  the  rules  given  above. 

229.  I  will  fully  declare  in  accordance  with  the  true  law  (the 
rules  concerning)  the  disputes,  (arising)  from  the  transgressions 
of  owners  of  cattle  and  of  herdsmen. 

230.  During  the  day  the  responsibility  for  the  safety  (of  the 
cattle  rests)  on  the  herdsman,  during  the  night  on  the  owner, 
(provided  they  are)  in  his  house ;  (if  it  be)  otherwise,  the  herds- 
man will  be  responsible  (for  them  also  during  the  night). 

231.  A  hired  herdsman  who  is  paid  with  milk,  may  milk  with 
the  consent  of  the  owner  the  best  (cow)  out  of  ten ;  such  shall  be 
his  hire  if  no  (other)  wages  (are  paid) . 

232.  The  herdsman  alone  shall  make  good  (the  loss  of  a  beast) 
strayed,  destroyed  by  worms,  killed  by  dogs  or  (by  falling)  into 
a  pit,  if  he  did  not  duly  exert  himself  to  (prevent  it) . 

233.  But  for  (an  animal)  stolen  by  thieves,  though  he  raised 
an  alarm,  the  herdsman  shall  not  pay,  provided  he  gives  notice  to 
his  master  at  the  proper  place  and  time. 

234.  If  cattle  die,  let  him  carry  to  his  master  their  ears,  skin^ 
tails,  bladders,  tendons,  and  the  yellow  concrete  bile,  and  let  him 
point  out  their  particular  marks. 

235.  But  if  goats  or  sheep  are  surrounded  by  wolves  and  the 
herdsman  does  not  hasten  (to  their  assistance),  he  shall  be  respon- 
sible for  any  (animal)  which  a  wolf  may  attack  and  kill. 

236.  But  if  they,  kept  in  (proper)  order,  graze  together  in  the 
forest,  and  a  wolf,  suddenly  jumping  on  one  of  them,  kills  it,  the 
herdsman  shall  bear  in  that  case  no  responsibility. 

237.  On  all  sides  of  a  village,  a  space,  one  hundred  dhanus  or 


488  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

three  samya-throws  (in  breadth),  shall  be  reserved  (for  pasture), 
and  thrice  (that  space)  round  a  town. 

238.  If  the  cattle  do  damage  to  unfenced  crops  on  that  (com- 
mon), the  king  shall  in  that  case  not  punish  the  herdsmen. 

239.  (The  owner  of  the  field)  shall  make  there  a  hedge  over 
which  a  camel  cannot  look,  and  stop  every  gap  through  which  a  dog 
or  a  boar  can  thrust  his  head. 

240.  (If  cattle  do  mischief)  in  an  enclosed  field  near  a  highway 
or  near  a  village,  the  herdsman  shall  be  fined  one  hundred  (pana^) ; 
(but  cattle),  unattended  by  a  herdsman,  (the  watchman  in  the 
field)  shall  drive  away. 

241.  (For  damage)  in  other  fields  (each  head  of)  cattle  shall 
(pay  a  fine  of)  one  (pana)  and  a  quarter,  and  in  all  (cases  the 
value  of)  the  crop  (destroyed)  shall  be  made  good  to  the  owner  of 
the  field ;    that  is  the  settled  rule. 

242.  But  Manu  has  declared  that  no  fine  shall  be  paid  for 
(damage  done  by)  a  cow  within  ten  days  after  her  calving,  by  bulls 
and  by  cattle  sacred  to  the  gods,  whether  they  are  attended  by  a 
herdsman  or  not. 

243.  If  (the  crops  are  destroyed  by)  the  husbandman's  (own) 
fault,  the  fine  shall  amount  to  ten  times  as  much  as  (the  king's) 
share ;  but  the  fine  (shall  be)  only  half  that  amount  if  (the  fault 
lay)  with  the  servants  and  the  farmer  had  no  knowledge  of  it. 

244.  To  these  rules  a  righteous  king  shall  keep  in  (all  cases 
of)  transgressions  by  masters,  their  cattle,  and  herdsmen. 

'  245.  If  a  dispute  has  arisen  between  two  villages  concerning 
a  boundary,  the  king  shall  settle  the  limits  in  the  month  of  Gyaish- 
tha,  when  the  landmarks  are  most  distinctly  visible. 

246.  Let  him  mark  the  boundaries  (by)  trees,  (e.g.)  Nyagro- 
dhas,  Asvatthas,  Kimsukas,  cotton-trees,  Salas,  Palmyra  palms, 
and  trees  with  milky  juice. 

247.  By  clustering  shrubs,  bamboos  of  different  kinds,  Samis, 
creepers  and  raised  mounds,  reeds,  thickets  of  Kubgaka ;  thus  the 
boundary  will  not  be  forgotten. 

248.  Tanks,  wells,  cisterns,  and  fountains  should  be  built 
where  boundaries  meet,  as  well  as  temples, 

249.  And  as  he  will  see  that  through  men's  ignorance  of  the 
boundaries  trespasses  constantly  occur  in  the  world,  let  him  cause 
to  be  made  other  hidden  marks  for  boundaries, 

250.  Stones,  bones,  cow's  hair,  chaff,  ashes,  potsherds,  dry 
cowdung,  bricks,  cinders,  pebbles,  and  sand, 

251.  And  whatever  other  things  of  a  similar  kind  the  earth 


Chap.  XIX.]  THE   LAWS   OF  MANU  489 

does  not  corrode  even  after  a  long  time,  those  he  should  cause 
to  be  buried  where  one  boundary  joins  (the  other). 

252.  By  these  signs,  by  long  continued  possession,  and  by 
constantly  flowing  streams  of  water  the  king  shall  ascertain  the 
boundary  (of  the  land)  of  two  disputing  parties. 

253.  If  there  be  a  doubt  even  on  inspection  of  the  marks,  the 
settlement  of  a  dispute  regarding  boundaries  shall  depend  on  wit- 
nesses. 

254.  The  witnesses,  (giving  evidence)  regarding  a  boundary, 
shall  be  examined  concerning  the  landmarks  in  the  presence  of  the 
crowd  of  the  villagers  and  also  of  the  two  litigants. 

255.  As  they,  being  questioned,  unanimously  decide,  even  so 
he  shall  record  the  boundary  (in  writing),  together  with  their 
names. 

256.  Let  them,  putting  earth  on  their  heads,  wearing  chaplets 
(of  red  flowers)  and  red  dresses,  being  sworn  each  by  (the  rewards 
for)  his  meritorious  deeds,  settle  (the  boundary)  in  accordance 
with  the  truth. 

257.  If  they  determine  (the  boundary)  in  the  manner  stated, 
they  are  guiltless  (being)  veracious  witnesses;  but  if  they  de- 
termine it  unjustly,  they  shall  be  compelled  to  pay  a  fine  of  two 
hundred  (panas). 

258.  On  failure  of  witnesses  (from  the  two  villages,  men  of) 
the  four  neighbouring  villages,  who  are  pure,  shall  make  (as  wit- 
nesses) a  decision  concerning  the  boundary  in  the  presence  of  the 
king. 

259.  On  failure  of  neighbours  (who  are)  original  inhabitants 
(of  the  country  and  can  be)  witnesses  with  respect  to  the  boundary, 
(the  king)  may  hear  the  evidence  even  of  the  following  inhabitants 
of  the  forest, 

260.  (Viz.)  hunters,  fowlers,  herdsmen,  fishermen,  root-diggers, 
snake-catchers,  gleaners,  and  other  foresters. 

261.  As  they,  being  examined,  declare  the  marks  for  the  meet- 
ing of  the  boundaries  (to  be),  even  so  the  king  shall  justly  cause 
them  to  be  fixed  between  the  two  villages. 

262.  The  decision  concerning  the  boundary-marks  of  fields, 
wells,  tanks,  of  gardens  and  houses  depends  upon  (the  evidence  of) 
the  neighbours. 

263.  Should  the  neighbours  give  false  evidence,  when  men 
dispute  about  a  boundary-mark,  the  king  shall  make  each  of  them 
pay  the  middlemost  amercement  as  a  fine. 

264.  He  who  by  intimidation  possessess  himself  of  a  house,  a 


490  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

tank,  a  garden,  or  a  field,  shall  be  fined  five  hundred  (panas) 
(if  he  trespassed)  through  ignorance,  the  fine  (shall  be)  two  hun- 
dred (panas). 

265.  If  the  boundary  cannot  be  ascertained  (by  any  evidence), 
let  a  righteous  king  with  (the  intention  of)  benefiting  them  (all), 
himself  assign  (his)  land  (to  each) ;   that  is  the  settled  rule. 

266.  Thus  the  law  for  deciding  boundary  (disputes)  has  been 
fully  declared,  I  will  next  propound  the  (manner  of)  deciding  (cases 
of)  defamation. 

267.  A  Kshatriya,  having  defamed  a  Brahmana,  shall  be  fined 
one  hundred  (panas) ;  a  Vaisya  one  hundred  and  fifty  or  two 
hundred ;    a  Sudra  shall  suffer  corporal  punishment. 

268.  A  Brahmana  shall  be  fined  fifty  (panas)  for  defaming  a 
Kshatriya ;  in  (the  case  of)  a  Vaisya  the  fine  shall  be  twenty-five 
(panas) ;   in  (the  case  of)  a  Sudra  twelve. 

269.  For  offenses  of  twice-born  men  against  those  of  equal 
caste  (varna,  the  fine  shall  be)  also  twelve  (panas) ;  for  speeches 
which  ought  not  to  be  uttered,  that  (and  every  fine  shall  be)  double. 

270.  A  once-born  man  (A  Sudra),  who  insults  a  twice-born  man 
with  gross  invective,  shall  have  his  tongue  cut  out;  for  he  is  of 
low  origin. 

271.  If  he  mentions  the  names  and  castes  (gati)  of  the  (twice- 
born)  with  contumely,  an  iron  nail,  ten  fingers  long,  shall  be 
thrust  red-hot  into  his  mouth. 

272.  If  he  arrogantly  teaches  Brahamanas  their  duty,  the  king 
shall  cause  hot  oil  to  be  poured  into  his  mouth  and  into  his  ears. 

273.  He  who  through  arrogance  makes  false  statements  regard- 
ing the  learning  (of  a  caste-fellow),  his  country,  his  caste  (gati),  or 
the  rites  by  which  his  body  was  sanctified,  shall  be  compelled 
to  pay  a  fine  of  two  hundred  (panas). 

274.  He  who  even  in  accordance  with  the  true  facts  (contemptu- 
ously) calls  another  man  one-eyed,  lame,  or  the  like  (names),  shall 
be  fined  at  least  one  karshapana. 

275.  He  who  defames  his  mother,  his  father,  his  wife,  his 
brother,  his  son,  or  his  teacher,  and  he  who  gives  not  the  way  to 
his  preceptor,  shall  be  compelled  to  pay  one  hundred  (pan  as) . 

276.  (For  mutual  abuse)  by  a  Brahmana  and  a  Kshatriya  a  fine 
must  be  imposed  by  a  discerning  (king),  on  the  Brahmana  the 
lowest  amercement,  but  on  the  Kshatriya  the  middlemost. 

277.  A  Vaisya  and  a  Sudra  must  be  punished  exactly  in  the 
same  manner  according  to  their  respective  castes,  but  the  tongue 
(of  the  Sudra)  shall. not  be  cut  out;   that  is  the  decision. 


Chap.  XIX.]  THE   LAWS   OF  MANU  491 

278.  Thus  the  rules  for  punishment  (applicable  to  cases)  of 
defamation  have  been  truly  declared;  I  will  next  propound  the 
decision  (of  cases)  of  assault. 

279.  With  whatever  limb  a  man  of  a  low  caste  does  hurt  to 
(a  man  of  the  three)  highest  (castes),  even  that  limb  shall  be  cut 
off ;   that  is  the  teaching  of  Manu. 

280.  He  who  raises  his  hand  or  a  stick,  shall  have  his  hand  cut 
off ;  he  who  in  anger  kicks  with  his  foot,  shall  have  his  foot  cut 
off. 

281.  A  low-caste  man  who  tries  to  place  himself  on  the  same 
seat  with  a  man  of  a  high  caste,  shall  be  branded  on  his  hip  and  be 
banished,  or  (the  king)  shall  cause  his  buttock  to  be  gashed. 

282.  If  out  of  arrogance  he  spits  (on  a  superior),  the  king 
shall  cause  both  his  lips  to  be  cut  off ;  .  .  . 

283.  If  he  lays  hold  of  the  hair  (of  a  superior),  let  the  (king) 
unhesitatingly  cut  off  his  hands,  likewise  (if  he  takes  him)  by  the 
feet,  the  beard,  the  neck,  or  the  scrotum. 

284.  He  who  breaks  the  skin  (of  an  equal)  or  fetches  blood 
(from  him)  shall  be  fined  one  hundred  (pan as),  he  who  cuts  a 
muscle  six  nishkas,  he  who  breaks  a  bone  shall  be  banished. 

285.  According   to   the   usefulness   of   the   several    (kinds   of)   -j^ 
trees  a  fine  must  be  inflicted  for  injuring  them ;   that  is  the  settled 
rule. 

286.  If  a  blow  is  struck  against  men  or  animals  in  order  to 
(give  them)  pain,  (the  judge)  shall  inflict  a  fine  in  proportion 
to  the  amount  of  pain  (caused). 

287.  If  a  limb  is  injured,  a  wound  (is  caused),  or  blood  (flows, 
the  assailant)  shall  be  made  to  pay  (to  the  sufferer)  the  expenses 
of  the  cure,  or  the  whole  (both  the  usual  amercement  and  the  ex- 
penses of  the  cure  as  a  fine  (to  the  king). 

288.  He  who  damages  the  goods  of  another,  be  it  intentionally 
or  unintentionally,  shall  give  satisfaction  to  the  (owner)  and  pay 
to  the  king  a  fine  equal  to  the  (damage). 

289.  In  the  case  of  (damage  done  to)  leather,  or  to  utensils 
of  leather,  of  wood,  or  of  clay,  the  fine  (shall  be)  five  times  their 
value;  likewise  in  the  case  of  (damage  to)  flowers,  roots,  and 
fruit. 

290.  They  declare  with  respect  to  a  carriage,  its  driver  and 
its  owner,  (that  there  are)  ten  cases  in  which  no  punishment 
(for  damage  done)  can  be  inflicted;  in  other  cases  a  fine  is  pre- 
scribed. 

291.  When  the  nose-string  is  snapped,  when  the  yoke  is  broken. 


492  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

when  the  carriage  turns  sideways  or  back,  when  the  axle  or  a  wheel 
is  broken, 

292.  When  the  leather-thongs,  the  rope  around  the  neck  or  the 
bridle  are  broken,  and  when  (the  driver)  has  loudly  called  out, 
"  Make  way,"  Manu  has  declared  (that  in  all  these  cases)  no  pun- 
ishment (shall  be  inflicted). 

293.  But  if  the  cart  turns  off  (the  road)  through  the  driver's 
want  of  skill,  the  owner  shall  be  fined,  if  damage  (is  done),  two 
hundred  (panas). 

294.  If  the  driver  is  skilful  (but  negligent),  he  alone  shall  be 
fined;  if  the  driver  is  unskilful,  the  occupants  of  the  carriage 
(also)  shall  be  each  fined  one  hundred  (panas). 

295.  But  if  he  is  stopped  on  his  way  by  cattle  or  by  (another) 
carriage,  and  he  causes  the  death  of  any  living  being,  a  fine  shall 
without  doubt  be  imposed. 

296.  If  a  man  is  killed,  his  guilt  will  be  at  once  the  same  as 
(that  of)  a  thief ;  for  large  animals  such  as  cows,  elephants,  camels 
or  horses,  half  of  that. 

297.  For  injuring  small  cattle  the  fine,  (shall  be)  two  hundred 
(panas) ;  the  fine  for  beautiful  wild  quadrupeds  and  birds  shall 
amount  to  fifty  (panas). 

298.  For  donkeys,  sheep,  and  goats  the  fine  shall  be  five  mashas ; 
but  the  punishment  for  killing  a  dog  or  a  pig  shall  be  one  masha. 

299.  A  wife,  a  son,  a  slave,  a  pupil,  and  a  (younger)  brother 
of  the  full  blood,  who  have  committed  faults,  may  be  beaten  with 
a  rope  or  a  split  bamboo. 

300.  But  on  the  back  of  the  body  (only),  never  on  a  noble  part ; 
he  who  strikes  them  otherwise  will  incur  the  same  guilt  as  a  thief. 

301.  Thus  the  whole  law  of  assault  (and  hurt)  has  been  de- 
clared completely;  I  will  now  explain  the  rules  for  the  decision 
(in  cases)  of  theft. 

302.  Let  the  king  exert  himself  to  the  utmost  to  punish  thieves ; 
for,  if  he  punishes  thieves,  his  fame  grows  and  his  kingdom  prospers. 

303.  That  king,  indeed,  is  ever  worthy  of  honour  who  ensures 
the  safety  (of  his  subjects) ;  for  the  sacrificial  session  (sattra, 
which  he,  as  it  were,  performs  thereby)  ever  grows  in  length,  the 
safety  (of  his  subjects  representing)  the  sacrificial  fee. 

304.  A  king  who  (duly)  protects  (his  subjects)  receives  from 
each  and  all  the  sixth  part  of  their  spiritual  merit ;  if  he  does  not 
protect  them,  the  sixth  part  of  their  demerit  also  (will  fall  on  him). 

305.  Whatever  (merit  a  man  gains  by)  reading  the  Veda,  by 
sacrificing,  by  charitable  gifts,  (or  by)  worshipping  (Gurus  and 


Chap.  XIX.]  THE   LAWS  OF  MANU  493 

gods),  the  king  obtains  a  sixth  part  of  that  in  consequence  of  his 
duty  in  protecting  (his  kingdom). 

306.  A  king  who  protects  the  created  beings  in  accordance  with 
the  sacred  law  and  smites  those  worthy  of  corporal  punishment, 
daily  offers  (as  it  were)  sacrifices  at  which  hundred  thousands  (are 
given)  as  fees. 

307.  A  king  who  does  not  afford  protection  (yet)  takes  his 
share  in  kind,  his  taxes,  tolls  and  duties,  daily  presents  and  fines, 
will  (after  death)  soon  sink  into  hell. 

308.  They  declare  that  a  king  who  affords  no  protection,  (yet) 
receives  the  sixth  part  of  the  produce,  takes  upon  himself  all  the 
foulness  of  his  whole  people. 

309.  Know  that  a  king  who  heeds  not  the  rules  (of  the  law), 
who  is  an  atheist,  and  rapacious,  who  does  not  protect  (his  sub- 
jects, but)  devours  them,  will  sink  low  (after  death). 

310.  Let  him  carefully  restrain  the  wicked  by  three  methods,  — 
by  imprisonment,  by  putting  them  in  fetters,  and  by  various  (kinds 
of)  corporal  punishments. 

311.  For  by  punishing  the  wicked  and  by  favouring  the  virtuous, 
kings  are  constantly  sanctified,  just  as  twice-born  men  by  sacri- 
fices. 

312.  A  king  who  desires  his  own  welfare  must  always  forgive 
litigants,  infants,  aged  and  sick  men,  who  inveigh  against  him. 

313.  He  who,  being  abused  by  men  in  pain,  pardons  (them), 
will  in  reward  of  that  (act)  be  exalted  in  heaven;  but  he  who, 
(proud)  of  his  kingly  state,  forgives  them  not,  will  for  that  (reason) 
sink  into  hell. 

314.  A  thief  shall,  running,  approach  the  king,  with  flying 
hair,  confessing  that  theft  (and  saying),  "  Thus  have  I  done, 
punish  me ;  " 

315.  (And  he  must)  carry  on  his  shoulder  a  pestle,  or  a  club 
of  Khadira  wood,  or  a  spear  sharp  at  both  ends,  or  an  iron  staff. 

316.  Whether  he  be  punished  or  pardoned^  the  thief  is  freed 
from  the  (guilt  of)  theft;  but  the  king,  if  he  pimishes  not,  takes 
upon  himself  the  guilt  of  the  thief. 

317.  The  killer  of  a  learned  Brahmana  throws  his  guilt  on 
him  who  eats  his  food,  an  adulterous  wife  on  her  (negligent)  hus- 
band, a  (sinning)  pupil  or  sacrificer  on  (their  negligent)  teacher  (or 
priest),  a  thief  on  the  king  (who  pardons  him). 

318.  But  the  men  who  have  committed  crimes  and  have  been 
punished  by  the  king,  go  to  heaven,  being  pure  like  those  who  per- 
formed meritorious  deeds. 


494  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

319.  He  who  steals  the  rope  or  the  water-pot  from  a  well,  or 
damages  a  hut  where  water  is  distributed,  shall  pay  one  masha  as  a 
fine  and  restore  the  (article  abstracted  or  damaged)  in  its  (proper 
place) . 

320.  On  him  who  steals  more  than  ten  kymbhas  of  grain  corporal 
punishment  (shall  be  inflicted) ;  in  other  cases  he  shall  be  fined 
eleven  times  as  much,  and  shall  pay  to  the  (owner  the  value  of  his) 
property. 

321.  So  shall  corporal  punishment  be  inflicted  for  stealing 
more  than  a  hundred  (palas)  of  articles  sold  by  the  weight,  (i.e.) 
of  gold,  silver,  and  so  forth,  and  of  most  excellent  clothes. 

3^2.  For  (stealing)  more  than  fifty  (palas)  it  is  enacted  that 
the  hands  (of  the  offender)  shall  be  cut  off;  but  in  other  cases, 
let  him  inflict  a  fine  of  eleven  times  the  value. 

323.  For  stealing  men  of  noble  family  and  especially  women 
and  the  most  precious  gems,  (the  offender)  deserves  corporal  (or 
capital)  punishment. 

*  324.  For  stealing  large  animals,  weapons,  or  medicines  let 
the  king  fix  a  punishment,  after  considering  the  time  and  the 
purpose  (for  which  they  were  destined). 

325.  For  (stealing)  cows  belonging  to  Brahmanas,  for  piercing 
(the  nostrils  of)  a  barren  cow,  and  for  stealing  (other)  cattle  (belong- 
ing to  Brahmanas,  the  offender)  shall  forthwith  lose  half  his  feet. 

326.  (For  stealing)  thread,  cotton,  drugs  causing  fermenta- 
tion, cowdung,  molasses,  sour  milk,  sweet  milk,  butter-milk,  water, 
or  grass, 

327.  Vessels  made  of  bamboo  or  other  cane,  salt  of  various 
kinds,  earthen  (vessels),  earth  and  ashes, 

328.  Fish,  birds,  oil,  clarified  butter,  meat,  honey,  and  other 
things  that  come  from  beasts. 

329.  Or  other  things  of  a  similar  kind,  spirituous  liquor,  boiled 
rice,  and  every  kind  of  cooked  food,  the  fine  (shall  be)  twice  the 
Yalue  (of  the  stolen  article). 

330.  For  flowers,  green  corn,  shrubs,  creepers,  trees,  and 
other  unhusked  (grain)  the  fine  (shall  be)  five  krishnalas. 

331.  For  husked  grain,  vegetables,  roots,  and  fruit  the  fine 
(shall  be)  one  hundred  (panas)  if  there  is  no  connexion  (between 
the  owner  and  the  thief),  fifty  (panas)  if  such  a  connexion  exists. 

332.  An  offence  (of  this  description),  which  is  committed  in 
the  presence  (of  the  owner)  and  with  violence,  will  be  robbery ; 
if  (it  is  committed)  in  his  absence,  it  will  be  theft;  likewise  if 
(the  possession  of)  anything  is  denied  after  it  has  been  taken. 


Chap.  XIX.]  THE   LAWS   OF  MANU  495 

333.  On  that  man  who  may  steal  (any  of)  the  above-mentioned 
articles,  when  they  are  prepared  for  (use),  let  the  king  inflict 
the  first  (or  lowest)  amercement ;  likewise  on  him  who  may  steal 
(a  sacred)  fire  out  of  the  room  (in  which  it  is  kept). 

334.  With  whatever  limb  a  thief  in  any  way  commits  (an  of- 
fence) against  men,  even  of  that  (the  king)  shall  deprive  him  in 
order  to  prevent  (a  repetition  of  the  crime). 

335.  Neither  a  father,  nor  a  teacher,  nor  a  friend,  nor  a  mother, 
nor  a  wife,  nor  a  son,  nor  a  domestic  priest  must  be  left  unpunished 
by  a  king,  if  they  do  not  keep  within  their  duty. 

336.  Where  another  common  man  would  be  fined  one  karsha- 
pana,  the  king  shall  be  fined  one  thousand ;  that  is  the  settled 
rule. 

337.  In  (a  case  of)  theft  the  guilt  of  a  Sudra  shall  be  eight- 
fold, and  of  .a  Vaisya  sixteenfold,  that  of  a  Kshatriya  two-and- 
thirty  fold. 

338.  That  of  a  Brahmana  sixty-fourfold,  or  quite  a  hundredfold, 
or  (even)  twice  f our-and-sixtyf old ;  (each  of  them)  knowing  the 
nature  of  the  offence. 

339.  (The  taking  of)  roots  and  of  fruit  from  trees,  of  wood 
for  a  (sacrificial)  fire,  and  of  grass  for  feeding  cows,  Manu  has 
declared  (to  be)  no  theft. 

340.  A  Brahmana,  seeking  to  obtain  property  from  a  man  who 
took  what  was  not  given  to  him,  either  by  sacrificing  for  him  or 
by  teaching  him,  is  even  like  a  thief. 

341.  A  twice-born  man,  who  is  travelling  and  whose  provisions 
are  exhausted,  shall  not  be  fined,  if  he  takes  two  stalks  of  sugar- 
cane or  two  (esculent)  roots  from  the  field  of  another  man. 

342.  He  who  ties  up  unbound  or  sets  free  tied  up  (cattle  of 
other  men),  he  who  takes  a  slave,  a  horse,  or  a  carriage  will  have 
incurred  the  guilt  of  a  thief. 

343.  A  king  who  punishes  thieves  according  to  these  rules, 
will  gain  fame  in  this  world  and  after  death  unsurpassable  bliss. 

344.  A  king  who  desires  to  gain  the  throne  of  Indra  and  im- 
perishable eternal  fame,  shall  not,  even  for  a  moment,  neglect  (to 
punish)  the  man  who  commits  violence. 

345.  He  who  commits  violence  must  be  considered  as  the  worst 
offender,  (more  wicked)  than  a  defamer,  than  a  thief,  and  than  he 
who  injures  (another)  with  a  staff. 

346.  But  that  king  who  pardons  the  perpetrator  of  violence 
quickly  perishes  and  incurs  hatred. 

347.  Neither  for  friendship's  sake,   nor  for  the  sake  of  great 


496  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

lucre,  must  a  king  let  go  perpetrators  of  violence,  who  cause  ter- 
ror to  all  creatures. 

348.  Twice-born  men  may  take  up  arms  when  (they  are)  hin- 
dered (in  the  fulfilment  of)  their  duties,  when  destruction  (threatens) 
the  twice-born  castes  (varna)  in  (evil)  times. 

349.  In  their  own  defence,  in  a  strife  for  the  fees  of  officiating 
priests,  and  in  order  to  protect  women  and  Brahmanas;  he  who 
(under  such  circumstances)  kills  in  the  cause  of  right,  commits 
no  sin. 

350.  One  may  slay  without  hesitation  an  assassin  who  ap- 
proaches (with  murderous  intent),  whether  (he  be  one's)  teacher, 
a  child  or  an  aged  man,  or  a  Brahmana  deeply  versed  in  the  Vedas. 

351.  By  killing  an  assassin  the  slayer  incurs  no  guilt,  whether 
(he  does  it)  publicly  or  secretly;  in  that  case  fury  recoils  upon 
fury. 

352.  Men  who  commit  adultery  with  the  wives  of  others,  the 
king  shall  cause  to  be  marked  by  punishments  which  cause  terror,- 
and  afterwards  banish. 

353.  For  by  (adultery)  is  caused  a  mixture  of  the  castes  (varna) 
among  men;  thence  (follows)  sin,  which  cuts  up  even  the  roots 
and  causes  the  destruction  of  everything. 

354.  A  man  formerly  accused  of  (such)  offences,  who  secretly 
converses  with  another  man's  wife,  shall  pay  the  first  (or  lowest) 
amercement. 

355.  But  a  man,  not  before  accused,  who  (thus)  speaks  with 
(a  woman)  for  some  (reasonable)  cause,  shall  not  incur  any  guilt, 
since  in  him  there  is  no  transgression. 


371.  If  a  wife,  proud  of  the  greatness  of  her  relatives  or  "(her 
own)  excellence,  violates  the  duty  which  she  owes  to  her  lord,  the 
king  shall  cause  her  to  be  devoured  by  dogs  in  a  place  frequented 
by  many. 

372.  Let  him  cause  the  male  offender  to  be  burnt  on  a  red-hot 
bed ;  they  shall  put  logs  under  it,  (until)  the  sinner  is  burned  (to 
death). 


381.  No  greater  crime  is  known  on  earth  than  slaying  a  Brah- 
mana ;  a  king,  therefore,  must  not  even  conceive  in  his  mind  the 
thought  of  killing  a  Brahmana. 


Chap.  XIX. J  THE   LAWS   OF  MANU  497 

386.  That  king  in  whose  town  lives  no  thief,  no  adulterer,  no 
defamer,  no  man  guilty  of  violence,  and  no  committer  of  assaults, 
attains  the  world  of  Sakra  (Indra). 

387.  The  suppression  of  those  five  in  his  dominions  secures 
to  a  king  paramount  sovereignty  among  his  peers  and  fame  in  the 
world. 

388.  A  sacrificer  who  forsakes  an  officiating  priest,  and  an 
officiating  priest  who  forsakes  a  sacrificer,  (each  being)  able 
to  perform  his  w^ork  and  not  contaminated  (by  grievous  crimes) 
must  each  be  fined  one  hundred  (panas). 

389.  Neither  a  mother,  nor  a  father,  nor  a  wife,  nor  a  son 
shall  be  cast  off ;  he  who  casts  them  off,  unless  guilty  of  a  crime 
causing  loss  of  caste,  shall  be  fined  by  the  king  six  hundred  (panas). 

390.  If  twice-born  men  dispute  among  each  other  concerning 
the  duty  of  the  orders,  a  king  who  desires  his  own  welfare  should 
not  (hastily)  decide  (what  is)  the  law. 

391.  Having  shown  them  due  honour,  he  should  with  (the  assist- 
ance of)  Brahmanas,  first  soothe  them  by  gentle  (speech)  and  after- 
wards teach  them  their  duty. 

392.  A  Brahmana  who  does  not  invite  his  next  neighbour  and 
his  neighbour  next  but  one,  (though)  both  (be)  worthy  (of  the 
honour),  to  a  festival  at  which  twenty  Brahmanas  are  entertained, 
is  liable  to  a  fine  of  one  masha. 

393.  A  Srotriya  who  does  not  entertain  a  virtuous  Srotriya 
at  auspicious  festive  rites,  shall  be  made  to  pay  him  twice  (the 
value  of)  the  meal  and  a  masha  of  gold  (as  a  fine  to  the  king). 

394.  A  blind  man,  an  idiot,  (a  cripple)  who  moves  with  the 
help  of  a  board,  a  man  full  seventy  years  old,  and  he  who  confers 
benefits  on  Srotriyas,  shall  not  be  compelled  by  any  (king)  to 
pay  a  tax. 

395.  Let  the  king  always  treat  kindly  a  Srotriya,  a  sick  or 
distressed  man,  an  infant,  and  an  aged  or  an  indigent  man,  a  man 
of  high  birth,  and  an  honourable  man  (Ayra). 

396.  A  washerman  shall  wash  (the  clothes  of  his  employers) 
gently  on  a  smooth  board  of  Salmaliwood ;  he  shall  not  return  the 
clothes  (of  one  person)  for  those  (of  another),  nor  allow  anybody 
(but  the  owner)  to  wear  them. 

397.  A  weaver  (who  has  received)  ten  palas  (of  thread),  shall 
return  (cloth  weighing)  one  pala  more;  he  who  acts  differently 
shall  be  compelled  to  pay  a  fine  of  twelve  (panas). 

398.  Let  the  king  take  one-twentieth  of  that  (amount)  which 
men,  well  acquainted  with  the  settlement  of  tolls  and  duties  (and) 


498  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

skilful  in  (estimating  the  value  of)  all  kinds  of  merchandise,  may 
fix  as  the  value  for  each  saleable  commodity. 

399.  Let  the  king  confiscate  the  whole  property  of  (a  trader) 
who  out  of  greed  exports  goods  of  which  the  king  has  a  monopoly 
or  (the  export  of  which  is)  forbidden. 

400.  He  who  avoids  a  custom-house  (or  a  toll),  he  who  buys  or 
sells  at  an  improper  time,  or  he  who  makes  a  false  statement  in 
enumerating  (his  goods),  shall  be  fined  eight  times  (the  amount  of 
duty)  which  he  tried  to  evade. 

401.  Let  (the  king)  fix  (the  rates  for)  the  purchase  and  sale 
of  all  marketable  goods,  having  (duly)  considered  whence  they 
come,  whither  they  go,  how  long  they  have  been  kept,  the  (prob- 
able) profit  and  the  (probable)  outlay. 

402.  Once  in  five  nights,  or  at  the  close  of  each  fortnight,  let 
the  king  publicly  settle  the  prices  for  the  (merchants). 

403.  All  weights  and  measures  must  be  duly  marked,  and  once 
in  six  months  let  him  re-examine  them. 

404.  At  a  ferry  an  (empty)  cart  shall  be  made  to  pay  one  pana, 
a  man's  (load)  half  a  pana,  an  animal  and  a  woman  one  quarter  of  a 
(pana),  an  unloaded  man  one-half  of  a  quarter. 

405.  Carts  (laden)  with  vessels  full  (of  merchandise)  shall  be 
made  to  pay  toll  at  a  ferry  according  to  the  value  (of  the  goods), 
empty  vessels  and  men  without  luggage  some  trifle. 

406.  For  a  long  passage  the  boat-hire  must  be  proportioned 
to  the  places  and  times ;  know  that  this  (rule  refers)  to  (passages 
along)  the  banks  of  rivers;   at  sea  there  is  no  settled  (freight). 

407.  But  a  woman  who  has  been  pregnant  two  months  or  more, 
an  ascetic,  a  hermit  in  the  forest,  and  Brahmanas  who  are  students 
of  the  Veda,  shall  not  be  made  to  pay  toll  at  a  ferry. 

408.  Whatever  may  be  damaged  in  a  boat  by  the  fault  of  the 
boatmen,  that  shall  be  made  good  by  the  boatmen  collectively, 
(each  paying)  his  share. 

409.  This  decision  in  suits  (brought)  by  passengers  (holds  good 
only)  in  case  the  boatmen  are  culpably  negligent  on  the  water; 
in  the  case  of  (an  accident)  caused  by  (the  will  of)  the  gods,  no 
fine  can  be  (inflicted  on  them.) 

410.  (The  king)  should  order  a  Vaisya  to  trade,  to  lend  money, 
to  cultivate  the  land,  or  to  tend  cattle,  and  a  Sudra  to  serve  the 
twice-born  castes. 

411.  (Some  wealthy)  Brahmana  shall  compassionately  support 
both  a  Kshatriya  and  a  Vaisya,  if  they  are  distressed  for  a  liveli- 
hood, employing  them  on  work  (which  is  suitable  for)  their  (castes). 


Chap.  XIX.]  THE   LAWS   OF  MANU  499 

412.  But  a  Brahmana  who,  because  he  is  powerful,  out  of  greed 
makes  initiated  (men  of  the)  twice-born  (castes)  against  their  will 
do  the  work  of  slaves,  shall  be  fined  by  the  king  six  hundred 
(panas). 

413.  But  a  Sudra,  whether  bought  or  unbought,  he  may  compel 
to  do  servile  work ;  for  he  was  created  by  the  Self-existent  (Svay- 
ambhu)  to  be  the  slave  of  a  Brahmana. 

414.  A  Sudra,  though  emancipated  by  his  master,  is  not  re- 
leased from  servitude;  since  that  is  innate  in  him,  who  can  set 
him  free  from  it  ? 

415.  There  are  slaves  of  seven  kinds,  (viz.)  he  who  is  made 
a  captive  under  a  standard,  he  who  serves  for  his  daily  food,  he 
who  is  born  in  the  house,  he  who  is  bought  and  he  who  is  given,  he 
who  is  inherited  from  ancestors,  and  he  who  is  enslaved  by  way  of 
punishment. 

416.  A  wife,  a  son,  and  a  slave,  these  three  are  declared  to  have 
no  property ;  the  wealth  which  they  earn  is  (acquired)  for  him  to 
whom  they  belong. 

417.  A  Brahmana  may  confidently  seize  the  goods  of  (his) 
Sudra  (slave) ;  for,  as  that  (slave)  can  have  no  property,  his  master 
may  take  possession. 

418.  (The  king)  should  carefully  compel  Vaisyas  and  Sudras 
to  perform  the  work  (prescribed)  for  them ;  for  if  these  two  (castes) 
swerved  from  their  duties,  they  would  throw  this  (whole)  world 
into  confusion. 

419.  Let  him  daily  look  after  the  completion  of  his  under- 
takings, his  beasts  of  burden,  and  carriages,  (the  collection  of)  his 
revenues  and  the  disbursements,  his  mines  and  his  treasury. 

420.  A  king  who  thus  brings  to  a  conclusion  all  the  legal  business 
enumerated  above,  and  removes  all  sin,  reaches  the  highest  state 
(of  bliss) . 


hV4 


> 


Chapter  XX 

THE   LEX   SALICAi 

TITLE  I.   CONCERNING  SUMMONSES 

1.  If  any  one  be  summoned  before  the  "  Thing  "  by  the  king's 
law,  and  do  not  come,  he  shall  be  sentenced  to  600  denars,  which 
make  15  shillings  (solidi). 

2.  But  he  who  summons  another,  and  does  not  come  himself, 
shall,  if  a  lawful  impediment  have  not  delayed  him,  be  sentenced 
to  15  shillings,  to  be  paid  to  him  whom  he  summoned. 

3.  And  he  who  summons  another  shall  walk  with  witnesses  to 
the  home  of  that  man,  and,  if  he  be  not  at  home,  shall  bid  the  wife 
or  any  one  of  the  family  to  make  known  to  him  that  he  has  been 
summoned  to  court. 

4.  But  if  he  be  occupied  in  the  king's  service  he  can  not  summon 
him. 

5.  But  if  he  shall  be  inside  the  hundred  seeing  about  his  own 
affairs,  he  can  summon  him  in  the  manner  explained  above. 

TITLE  II.  CONCERNING  THEFTS  OP  PIGS,  ETC. 

1.  If  any  one  steal  a  sucking  pig,  and  it  be  proved  against  him, 
he  shall  be  sentenced  to  120  denars»  which  make  three  shillings. 

2.  If  any  one  steal  a  pig  that  can  live  w^ithout  its  mother,  and 
it  be  proved  on  him,  he  shall  be  sentenced  to  40  denars  —  that  is, 
1  shilling. 

14.  If  any  one  steal  25  sheep  where  there  were  no  more  in  that 
flock,  and  it  be  proved  on  him,  he  shall  be  sentenced  to  2500  de- 
nars —  that  is,  62  shillings. 

^  [Reprinted  from  Ernest  F.  Henderson's  "Select  Historical  Docu- 
ments of  the  Middle  Ages,"  London,  G.  Bell  &  Sons,  Ltd.,  1912,  with  the 
consent  of  the  publishers  and  The  Macmillan  Company.  Translated  from 
Gengler,  "Germanische  Rechtsdenkmaler,"  p.  267.  The  date  of  these  laws 
has  not  been  definitely  ascertained.  Their  first  reduction  to  writing  prob- 
ably may  l>e  placed  in  the  second  half  of  the  400  s.  This  code  also  has  a 
special  interest  for  us  as  one  of  the  fountains  of  English  law.  It  is  the 
oldest  written  Germanic  code  which  survives,  with  the  possible  exception  of 
the  fragments  of  the  Visigothie  code  attributed  to  Euric] 

500 


Chap.  XX.]  THE   LEX   SALIC  A  501 

TITLE  III.    CONCERNING  THEFTS  OF  CATTLE 

4.  If  any  one  steal  that  bull  which  rules  the  herd  and  never 
has  been  yoked,  he  shall  be  sentenced  to  1800  denars,  which  make 
45  shillings. 

5.  But  if  that  bull  is  used  for  the  cows  of  three  villages  in  com- 
mon, he  who  stole  him  shall  be  sentenced  to  three  times  45  shil- 
lings. 

6.  If  any  one  steal  a  bull  belonging  to  the  king  he  shall  be  sen- 
tenced to  3600  denars,  which  make  90  shillings. 


TITLE    IV.    CONCERNING    DAMAGE    DONE    AMONG    CROPS 
OR  IN  ANY  ENCLOSURE 

1.  If  any  one  finds  cattle,  or  a  horse,  or  flocks  of  any  kind  in 
his  crops^  he  shall  not  at  all  mutilate  them. 

2.  If  he  do  this  and  confess  it,  he  shall  restore  the  worth 
of  the  animal  in  place  of  it,  and  shall  himself  keep  the  mutilated 
one. 

3.  But  if  he  have  not  confessed  it,  and  it  have  been  proved  on 
him,  he  shall  be  sentenced,  besides  the  value  of  the  animal  and  the 
fines  for  delay,  to  600  denars,  which  make  15  shillings. 


TITLE  XL      CONCERNING  THEFTS   OR  HOUSEBREAKING 
OF  FREEMEN 

1.  If  any  freeman  steal,  outside  of  the  house,  something  worth 
2  denars,  he  shall  be  sentenced  to  600  denars,  which  make  15 
shillings. 

2.  But  if  he  steal,  outside  of  the  house,  something  worth  40 
denars,  and  it  be  proved  on  him,  he  shall  be  sentenced,  besides  the 
amount  and  the  fines  for  delay,  to  1400  denars,  which  make  35 
shillings. 

3.  If  a  freeman  break  into  a  house  and  steal  something  worth 
2  denars,  and  it  be  proved  on  him,  he  shall  be  sentenced  to  15 
shillings. 

4.  But  if  he  shall  have  stolen  something  worth  more  than  5 
denars,  and  it  have  been  proved  on  him,  he  shall  be  sentenced, 
besides  the  worth  of  the  object  and  the  fines  for  delay,  to  1400  de- 
nars, which  make  35  shillings. 

5.  But  if  he  have  broken,  or  tampered  with,  the  lock,  and  thus 
have  entered  the  house  and  stolen  anything  from  it,  he  shall  be 


502  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

sentenced,  besides  the  worth  of  the  object  and  the  fines  for  delay, 
to  1800  denars,  which  make  45  shillings. 

6.  And  if  he  have  taken  nothing,  or  have  escaped  by  flight,  he 
shall,  for  the  housebreaking  alone,  be  sentenced  to  1200  denars, 
which  make  30  shillings. 


TITLE    XII.      CONCERNING    THEFTS    OR    HOUSEBREAKING 
ON  THE   PART   OF  SLAVES 

1.  If  a  slave  steal,  outside  of  the  house,  something  worth  two 
denars,  he  shall,  besides  paying  the  worth  of  the  object  and  the 
fines  for  delay,  be  stretched  out  and  receive  120  blows. 

2.  But  if  he  steal  something  worth  ^0_denars,  he  shall  either  be 
castrated  or  pay  6  shillings.  But  the  lord  of  the  slave  who  com- 
mitted the  theft  shall  restore  to  the  plaintiff  the  worth  of  the 
object  and  the  fines  for  delay. 

TITLE    XIII.     CONCERNING    RAPE    COMMITTED  BY    FREE- 
MEN 

1.  If  three  men  carry  off  a  freeborn  girl,  they  shall  be  compelled 
to  pay  30  shillings. 

2.  If  there  are  more  than  three,  each  one  shall  pay  5  shillings. 

3.  Those  who  shall  have  been  present  with  boats  shall  be  sen- 
tenced to  three  shillings. 

4.  But  those  who  commit  rape  shall  be  compelled  to  pay  2500 
denars,  which  make  63  shillings. 

5.  But  if  they  have  carried  off  that  girl  from  behind  lock  and 
key,  or  from  the  spinning  room,  they  shall  be  sentenced  to  the 
above  price  and  penalty. 

6.  But  if  the  girl  who  is  carried  off  be  under  the  king's  protec- 
tion, then  the  ''  frith  "  (peace-money)  shall  be  2500  denars,  which 
make  63  shillings. 

7.  But  if  a  bondsman  of  the  king,  or  a  Jeet,  should  carry  off  a 
free  woman,  he  shall  be  sentenced  to  death. 

8.  But  if  a  free  woman  have  followed  a  slave  of  her  own  will, 
she  shall  lose  her  freedom. 

9.  If  a  freeborn  man  shall  have  taken  an  alien  bondswoman, 
he  shall  suffer  similarly. 

10.  If  any  body  take  an  alien  spouse  and  join  her  to  himself  in 
matrimony,  he  shall  be  sentenced  to  2500  denars,  which  make 
63  shillings. 


Chap.  XX.]  THE   LEX   SALICA  503 

TITLE  XIV.    CONCERNING  ASSAULT  AND  ROBBERY 

1.  If  any  one  have  assaulted  and  plundered  a  freeman,  and  it 
be  proved  on  him,  he  shall  be  sentenced  to  2500  denars,  which 
make  63  shillings. 

2.  If  a  Roman  have  plundered  a  Salian  Frank,  the  above  law 
shall  be  observed. 

3.  But  if  a  Frank  have  plundered  a  Roman,  he  shall  be  sentenced 
to  35  shillings. 

4.  If  any  man  should  wish  to  migrate,  and  has  permission  from 
the  king,  and  shall  have  shown  this  in  the  public  ''  Thing  :  "  who- 
ever, contrary  to  the  decree  of  the  king,  shall  presume  to  oppose 
him,  shall  be  sentenced  to  8000  denars,  which  make  200  shillings* 

TITLE  XV.    CONCERNING  ARSON 

1.  If  any  one  shall  set  fire  to  a  house  in  which  men  were  sleep- 
ing, as  many  freemen  as  were  in  it  can  make  complaint  before  the 
"  Thing ;  "  and  if  any  one  shall  have  been  burned  in  it,  the  incen- 
diary shall  be  sentenced  to  2500  denars,  which  make  63  shillings. 

TITLE  XVII.  CONCERNING  WOUNDS 

1.  If  any  one  have  wished  to  kill  another  person,  and  the  blow 
have  missed,  he  on  whom  it  was  proved  shall  be  sentenced  to  2500 
denars,  which  make  63  shillings. 

2.  If  any  person  have  wished  to  strike  another  with  a  poisoned 
arrow,  and  the  arrow  have  glanced  aside,  and  it  shall  be  proved 
on  him :  he  shall  be  sentenced  to  2500  denars,  which  make  63 
shillings. 

3.  If  any  person  strike  another  on  the  head  so  that  the  brain 
appears,  and  the  three  bones  which  lie  above  the  brain  shall  pro- 
ject, he  shall  be  sentenced  to  1200  denars,  which  make  30  shillings. 

4.  But  if  it  shall  have  been  between  the  ribs  or  in  the  stomach 
so  that  the  wound  appears  and  reaches  to  the  entrails,  he  shall 
be  sentenced  to  1200  denars  —  which  make  30  shillings  —  besides 
five  shillings  for  the  physician's  pay. 

5.  If  any  one  shall  have  struck  a  man  so  that  blood  falls  to  the 
floor,  and  it  be  proved  on  him,  he.  shall  be  sentenced  to  600  denars, 
which  make  15  shillings. 

6.  But  if  a  freeman  strike  a  freeman  with  his  fist  so  that  blood 
does  not  flow,  he  shall  be  sentenced  for  each  blow —  up  to  3  blows 
—  to  120  denars,  which  make  3  shillings. 


504  ANCIENT  AND   PRIMITIVE   LAWS   AND   CODES  [Part  III. 

TITLE  XVIII.    CONCERNING  HIM  WHO,  BEFORE  THE   KING, 
ACCUSES  AN  INNOCENT  MAN 

If  any  one,  before  the  king,  accuse  an  innocent  man  who  is  ab- 
sent, he  shall  be  sentenced  to  2500  denars,  which  make  63  shillings. 

TITLE   XIX.    CONCERNING  MAGICIANS 

1.  If  any  one  have  given  herbs  to  another  so  that  he  die,  he 
shall  be  sentenced  to  200  shillings  (or  shall  surely  be  given  over  to 
fire). 

2.  If  any  person  have  bewitched  another,  and  he  who  was  thus 
treated  shall  escape,  the  author  of  the  crime,  who  is  proved  to 
have  committed  it,  shall  be  sentenced  to  2500  denars,  which  make 
63  shillings. 

TITLE  XXIV.    CONCERNING  THE   KILLING  OF  LITTLE 
CHILDREN  AND  WOMEN 

1.  If  any  one  have  slain  a  boy  under  10  years  —  up  to  the  end 
of  the  tenth  —  and  it  shall  have  been  proved  on  him,  he  shall  be 
sentenced  to  24000  denars,  which  make  600  shillings. 

3.  If  any  one  have  hit  a  free  woman  who  is  pregnant,  and  she 
dies,  he  shall  be  sentenced  to  28000  denars,  which  make  700 
shillings. 

6.  If  any  one  have  killed  a  free  woman  after  she  has  begun  bear- 
ing children,  he  shall  be  sentenced  to  24000  denars,  which  make 
600  shillings. 

7.  After  she  can  have  no  more  children,  he  who  kills  her  shall 
be  sentenced  to  8000  denars,  which  make  200  shillings. 

TITLE  XXX.    CONCERNING  D^SULTS 

3.  If  any  one,  man  or  woman,  shall  have  called  a  woman  harlot, 
and  shall  not  have  been  able  to  prove  it,  he  shall  be  sentenced  to 
1800  denars,  which  make  45  shillings. 

4.  If  any  person  shall  have  called  another  "  fox,"  he  shall  be 
sentenced  to  3  shillings. 

5.  If  any  man  shall  have  called  another  "  hare,"  he  shall  be 
sentenced  to  3  shillings. 

6.  If  any  man  shall  have  brought  it  up  against  another  that  he 
have  thrown  away  his  shield,  and  shall  not  have  been  able  to 
prove  it,  he  shall  be  sentenced  to  120  denars,  which  make  3  shillings. 


Chap.  XX.]  THE   LEX   SALIC  A  505 

7.  If  any  man  shall  have  called  another  "  spy  "  or  "  perjurer," 
and  shall  not  have  been  able  to  prove  it,  he  shall  be  sentenced  to 
600  denars,  which  make  15  shillings. 

TITLE   XXXIII.     CONCERNING  THE   THEFT  OF  HUNTING 

ANIMALS 

2.  If  any  one  have  stolen  a  tame  marked  stag  (-hound?), 
trained  to  hunting,  and  it  shall  have  been  proved  through  wit- 
nesses that  his  master  had  him  for  hunting,  or  had  killed  with 
him  two  or  three  beasts,  he  shall  be  sentenced  to  1800  denars, 
which  make  45  shillings. 

TITLE  XXXIV.     CONCERNING  THE    STEALING  OF    FENCES 

1.  If  any  man  shall  have  cut  3  staves  by  which  a  fence  is  bound 
or  held  together,  or  have  stolen  or  cut  the  heads  of  3  stakes,  he 
shall  be  sentenced  to  600  denars,  which  make  15  shillings. 

2.  If  any  one  shall  have  drawn  a  harrow  through  another's 
harvest  after  it  has  sprouted,  or  shall  have  gone  through  it  with 
a  waggon  where  there  was  no  road,  he  shall  be  sentenced  to  120 
denars,  which  make  3  shillings. 

3.  If  any  one  shall  have  gone,  where  there  is  no  way  or  path, 
through  another's  harvest  which  has  already  become  thick,  he 
shall  be  sentenced  to  600  denars,  which  make  15  shillings. 

TITLE  XLL    CONCERNING  THE  MURDER  OF  FREEMEN 

1.  If  any  one  shall  have  killed  a  free  Frank,  or  a  barbarian 
living  under  the  Salic  law,  and  it  have  been  proved  on  him,  he 
shall  be  sentenced  to  8000  denars. 

2.  But  if  he  shall  have  thrown  him  into  a  well  or  into  the  water, 
or  shall  have  covered  him  with  branches  or  anything  else,  to  con- 
ceal him,  he  shall  be  sentenced  to  24000  denars,  which  make  600 
shillings. 

3.  But  if  any  one  has  slain  a  man  who  is  in  the  service  of  the  king, 
he  shall  be  sentenced  to  24000  denars,  which  make  600  shillings. 

4.  But  if  he  have  put  him  in  the  water  or  in  a  well,  and  covered 
him  with  anything  to  conceal  him,  he  shall  be  sentenced  to  72000 
denars,  which  make  1800  shillings. 

5.  If  any  one  have  slain  a  Roman  who  eats  in  the  king's  palace, 
and  it  have  been  proved  on  him,  he  shall  be  sentenced  to  12000 
denars,  which  make  300  shillings. 

6.  But  if  the  Roman  shall  not  have  been  a  landed  proprietor 


506  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

and  table  companion  of  the  king,  he  who  killed  him  shall  be 
sentenced  to  4000  denars,  which  make  100  shillings. 

7.  But  if  he  shall  have  killed  a  Roman  who  was  obliged  to  pay 
tribute,  he  shall  be  sentenced  to  63  shillings. 

9.  If  any  one  have  thrown  a  free  man  into  a  well,  and  he  have 
escaped  alive,  he  (the  criminal)  shall  be  sentenced  to  4000  denars, 
which  make  100  shillings. 

TITLE  XLV.    CONCERNING  MIGRATORS 

1.  If  any  one  wish  to  migrate  to  another  village  and  if  one  or 
more  who  live  in  that  village  do  not  wish  to  receive  him,  —  if 
there  be  only  one  who  objects,  he  shall  not  have  leave  to  move 
there. 

2.  But  if  he  shall  have  presumed  to  settle  in  that  village  in 
spite  of  his  rejection  by  one  or  two  men,  then  some  one  shall 
give  him  warning.  And  if  he  be  unwilling  to  go  away,  he  who 
gives  him  warning  shall  give  him  warning,  with  witnesses,  as 
follows  :  I  warn  thee  that  thou  may'st  remain  here  this  next  night 
as  the  Salic  law  demands,  and  I  warn  thee  that  within  10  nights 
thou  shalt  go  forth  from  this  village.  After  another  10  nights  he 
shall  again  come  to  him  and  warn  him  again  within  10  nights  to 
go  away.  If  he  still  refuse  to  go,  again  10  nights  shall  be  added  to 
the  command,  that  the  number  of  30  nights  may  be  full.  If  he 
will  not  go  away  even  then,  then  he  shall  summon  him  to  the 
'^  Thing,"  and  present  his  witnesses  as  to  the  separate  commands 
to  leave.  If  he  who  has  been  warned  will  not  then  move  away, 
and  no  valid  reason  detains  him,  and  all  the  above  warnings  which 
we  have  mentioned  have  been  given  according  to  law:  then  he 
who  gave  him  warning  shall  take  the  matter  into  his  own  hands 
and  request  the  "  comes  "  to  go  to  that  place  and  expel  him.  And 
because  he  would  not  listen  to  the  law,  that  man  shall  relinquish 
all  that  he  has  earned  there,  and,  besides,  shall  be  sentenced  to 
1200  denars,  which  make  30  shillings. 

3.  But  if  anyone  have  moved  there,-  and  within  12  months  no 
one  have  given  him  warning,  he  shall  remain  as  secure  as  the 
other  neighbours. 

TITLE  XLVI.    CONCERNING  TRANSFfR^  OF  PROPERTY 

1.  The  observance  shall  be  that  the  Thunginus  or  Centenarius 
shall  call  together  a  "  Thing,"  and  shall  have  his  shield  in  the 
"  Thing,"  and  shall  demand  three  men  as  witnesses  for  each  of 


Chap.  XX.]  THE   LEX  SALICA  507 

the  three  transactions.  He  (the  owner  of  the  land  to  be  trans- 
ferred) shall  seek  a  man  who  has  no  connection  with  himself,  and 
shall  throw  a  stalk  into  his  lap.  And  to  him  into  whose  lap  he 
has  thrown  the  stalk  he  shall  tell,  concerning  his  property,  how 
much  of  it  —  or  whether  the  whole  or  a  half  —  he  wishes  to  give. 
He  in  whose  lap  he  threw  the  stalk  shall  remain  in  his  (the  owner's) 
house,  and  shall  collect  three  or  more  guests,  and  shall  have  the 
property  —  as  much  as  is  given  him  —  in  his  power.  And,  after- 
wards, he  to  whom  that  property  is  entrusted  shall  discuss  all 
these  things  with  the  witnesses  collected  afterwards,  either  before 
the  king  or  in  the  regukr  "  Thing,"  he  shall  give  the  property  up 
to  him  for  whom  it  was  intended.  He  shall  take  the  stalk  in  the 
*'  Thing,"  and,  before  12  months  are  over,  shall  throw  it  into  the 
lap  of  him  whom  the  owner  has  named  heir ;  and  he  shall  restore 
not  more  nor  less,  but  exactly  as  much  as  was  entrusted  to  him. 
2.  And  if  any  one  shall  wish  to  say  anything  against  this,  three 
sworn  witnesses  shall  say  that  they  were  in  the  "  Thing  "  which 
the  "  Thunginus  "  or  "  Centenarius  "  called  together,  and  that 
they  saw  that  man  who  wished  to  give  his  property  throw  a  stalk 
into  the  lap  of  him  whom  he  had  selected.  They  shall  name  by 
name  him  who  threw  his  property  into  the  lap  of  the  other,  and, 
likewise,  shall  name  him  whom  he  named  his  heir.  And  three 
other  sworn  witnesses  shall  say  that  he  in  whose  lap  the  stalk  was 
thrown  had  remained  in  the  house  of  him  who  gave  his  property, 
and  had  there  collected  three  or  more  guests,  and  that  they  had 
eaten  porridge  at  table,  and  that  he  had  collected  those  who  were 
bearing  witness,  and  that  those  guests  had  thanked  him  for  their 
entertainment.  All  this  those  other  sworn  witnesses  shall  say, 
and  that  he  who  received  that  property  in  his  lap  in  the  "  Thing  " 
held  before  the  king,  or  in  the  regular  public  "  Thing,"  did  publicly, 
before  the  people,  either  in  the  presence  of  the  king  or  in  public 
"  Thing  "  —  namely  on  the  Mallberg,  before  the  "  Thunginus  " 
—  throw  the  stalk  into  the  lap  of  him  whom  the  owner  had  named 
as  heir.     And  thus  9  witnesses  shall  confirm  all  this. 


TITLE  L.    CONCERNING  PROMISES  TO  PAY 

1.  If  any  freeman  or  leet  have  made  to  another  a  promise  to 
pay,  then  he  to  whom  the  promise  was  made  shall,  within  40  days 
or  within  such  term  as  was  agreed  when  he  made  the  promise,  go 
to  the  house  of  that  man  with  witnesses,  or  with  appraisers.  And 
if  he  (the  debtor)  be  unwilling  to  make  the  promised  payment, 


508  ANCIENT  AND   PRIMITIVE   LAWS   AND   CODES  [Part  III. 

he  shall  be  sentenced  to  15  shillings  above  the  debt  which  he  had 
promised. 

2.  If  he  then  be  unwilling  to  pay,  he  (the  creditor)  shall  summon 
him  before  the  *'  Thing  "  and  thus  accuse  him :  ''I  ask  thee, 
'  Thunginus,'  to  bann  my  opponent  who  made  me  a  promise  to 
pay  and  owes  me  a  debt."  And  he  shall  state  how  much  he  owes 
and  promised  to  pay.  Then  the  ''  Thunginus  "  shall  say :  "  I 
bann  thy  opponent  to  what  the  Salic  law  decrees."  Then  he  to 
whom  the  promise  was  made  shall  warn  him  (the  debtor)  to  make 
no  payment  or  pledge  of  payment  to  any  body  else  until  he  have 
fulfilled  his  promise  to  him  (the  creditor).  And  straightway  on 
that  same  day,  before  the  sun  sets,  he  shall  go  to  the  house  of  that 
man  with  witnesses,  and  shall  ask  if  he  will  pay  that  debt.  If  he 
will  not,  he  (the  creditor)  shall  wait  until  after  sunset;  then,  if 
he  have  waited  until  after  sunset,  120  denars,  which  make  3  shil- 
lings shall  be  added  on  to  the  debt.  And  this  shall  be  done  up  to 
3  times  in  3  weeks.  And  if  at  the  third  time  he  will  not  pay  all 
this,  it  (the  sum)  shall  increase  to  360  denars,  or  9  shillings : '  so, 
namely,  that,  after  each  admonition  or  waiting  until  after  sunset, 
3  shillings  shall  be  added  to  the  debt. 

3.  If  any  one  be  unwilling  to  fulfil  his  promise  in  the  regular 
assembly, — then  he  to  whom  the  promise  was  made  shall  go  to  the 
count  of  that  place,  in  whose  district  he  lives,  and  shall  take  the 
stalk  and  shall  say :  oh  count,  that  man  made  me  a  promise  to 
pay,  and  I  have  lawfully  summoned  him  before  the  court  accord- 
ing to  the  Salic  law  on  this  matter ;  I  pledge  thee  myself  and  my 
fortune  that  thou  may'st  safely  seize  his  property.  And  he  shall 
state  the  case  to  him,  and  shall  tell  how  much  he  (the  debtor) 
had  agreed  to  pay.  Then  the  count  shall  collect  7  suitable  bailiffs, 
and  shall  go  with  them  to  the  house  of  him  who  made  the  promise 
and  shall  say  :  '*  thou  who  art  here  present  pay  voluntarily  to  that 
man  what  thou  didst  promise,  and  choose  any  two  of  those  bailiffs 
who  shall  appraise  that  from  which  thou  shalt  pay ;  and  make  good 
what  thou  dost  owe,  according  to  a  just  appraisal."  But  if  he  will 
not  hear,  or  be  absent,  then  the  bailiffs  shall  take  from  his  prop- 
erty the  value  of  the  debt  which  he  owes.  And,  according  to  the 
law,  the  accuser  shall  take  two  thirds  of  that  which  the  debtor 
owes,  and  the  count  shall  collect  for  himself  the  other  third  as  peace 
money;  unless  the  peace  money  shall  have  been  paid  to  him  be- 
fore in  this  same  matter. 

4.  If  the  count  have  been  appealed  to,  and  no  sufficient  reason, 
and  no  duty  of  the  king,  have  detained  him  —  and  if  he  have  put 


Chap.  XX.  1  THE   LEX  SALIC  A  509 

off  going,  and  have  sent  no  substitute  to  demand  law  and  justice : 
he  shall  answer  for  it  with  his  life,  or  shall  redeem  himself  with  his 
"  wergeld." 

TITLE  LIV.    CONCERNING  THE   SLAYING  OF  A  COUNT 

1.  If  any  one  slay  a  count,  he  shall  be  sentenced  to  2400denars, 
which  make  600  shillings. 

TITLE   LV.     CONCERNING    THE  PLUNDERING  OF   CORPSES 

2.  If  any  one  shall  have  dug  up  and  plundered  a  corpse  already' 
buried,  and  it  shall  have  been  proved  on  him,  he  shall  be  outlawed 
until  the  day  when  he  comes  to  an  agreement  with  the  relatives  of 
the  dead  man,  and  they  ask  for  him  that  he  be  allowed  to  come 
among  men.  And  whoever,  before  he  come  to  an  arrangement 
with  the  relative,  shall  give  him  bread  or  shelter  —  even  if  they 
are  his  relations  or  his  own  wife  —  shall  be  sentenced  to  600  denars 
which  make  15  shillings. 

3.  But  he  who  is  proved  to  have  committed  the  crime  shall  be 
sentenced  to  8000  denars,  which  make  200  shillings. 

TITLE    LVI.     CONCERNING   HIM   WHO    SHALL   HAVE 
SCORNED   TO  COME  TO  COURT 

1.  If  any  man  shall  have  scorned  to  come  to  court,  and  shall 
have  put  off  fulfilling  the  injunction  of  the  bailiffs,  and  shall  not 
have  been  willing  to  consent  to  undergo  the  fine,  or  the  kettle 
ordeal,  or  anything  prescribed  by  law:  then  he  (the  plaintiff) 
shall  summon  him  to  the  presence  of  the  king.  And  there  shall 
be  12  witnesses  who  —  3  at  a  time  being  sworn  —  shall  testify 
that  they  were  present  when  the  bailiff  enjoined  him  (the  accused) 
either  to  go  to  the  kettle  ordeal,  or  to  agree  concerning  the  fine  ; 
and  that  he  had  scorned  the  injunction.  Then  3  others  shall 
swear  that  they  were  there  on  the  day  when  the  bailiffs  enjoined 
that  he  should  free  himself  by  the  kettle  ordeal  or  by  composition  ; 
and  that  40  days  after  that,  in  the  "  mallberg,"  he  (the  accuser) 
had  again  waited  until  after  sunset,  and  that  he  (the  accused) 
would  not  obey  the  law.  Then  he  (the  accuser)  shall  summon 
him  before  the  king  for  a  fortnight  thence;  and  three  witnesses 
shall  swear  that  they  were  there  when  he  summoned  him  and  when 
he  waited  for  sunset.     If  he  does  not  then  come,  those  9,  being 


510  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

sworn,  shall  give  testimony  as  we  have  above  explained.  On  that 
day  likewise,  if  he  do  not  come,  he  (the  accuser)  shall  let  the  sun 
go  down  on  him,  and  shall  have  3  witnesses  who  shall  be  there  when 
he  waits  till  sunset.  But  if  the  accuser  shall  have  fulfilled  all 
this,  and  the  accused  shall  not  have  been  willing  to  come  to  any 
court,  then  the  king,  before  whom  he  has  been  summoned,  shall 
withdraw  his  protection  from  him.  Then  he  shall  be  guilty,  and 
all  his  goods  shall  belong  to  the  fisc,  or  to  him  to  whom  the  fisc 
may  wish  to  give  them.  And  whoever  shall  have  fed  or  housed 
him  —  even  if  it  were  his  own  wife  —  shall  be  sentenced  to  600 
denars,  which  make  15  shillings ;  until  he  (the  debtor)  shall  have 
made  good  all  that  has  been  laid  to  his  charge. 

TITLE   LVII.    CONCERNING  THE   "CHRENECRUDA " 

1.  If  any  one  have  killed  a  man,  and,  having  given  up  all  his 
property,  has  not  enough  to  comply  with  the  full  terms  of  the  law, 
he  shall  present  12  sworn  witnesses  to  the  effect  that,  neither 
above  the  earth  nor  under  it,  has  he  any  more  property  than  he  has 
already  given.  And  he  shall  afterwards  go  into  his  house,  and 
shall  collect  in  his  hand  dust  from  the  four  corners  of  it,  and  shall 
afterwards  stand  upon  the  threshold,  looking  inwards  into  the 
house.  And  then,  with  his  left  hand,  ^  he  shall  throw  over  his 
shoulder  some  of  that  dust  on  the  nearest  relative  that  he  has.  But 
if  his  father  and  (his  father's)  brothers  have  already  paid,  he  shall 
then  throw  that  dust  on  their  (the  brothers')  children  —  that  is, 
over  three  (relatives)  who  are  nearest  on  the  father's  and  three 
on  the  mother's  side.  And  after  that,  in  his  shirt,  without  girdle 
and  without  shoes,  a  staff  in  his  hand,  he  shall  spring  over  the 
hedge.  And  then  those  three  shall  pay  half  of  what  is  lacking  of 
the  compounding  money  or  the  legal  fine;  that  is,  those  others 
who  are  descended  in  the  paternal  line  shall  do  this. 

2.  But  if  there  be  one  of  those  relatives  who  has  not  enough 
to  pay  his  whole  indebtedness,  he,  the  poorer  one,  shall  in  turn 
throw  the  "  chrenecruda  "  on  him '  of  them  who  has  the  most, 
so  that  he  shall  pay  the  whole  fine. 

3.  But  if  he  also  have  not  enough  to  pay  the  whole,  then  he  who 
has  charge  of  the  murderer  shall  bring  him  before  the  "  Thing," 
and  afterwards  to  4  Things,  in  order  that  they  (his  friends)  may 
take  him  under  their  protection.  And  if  no  one  have  taken  him 
under  his  protection  —  that  is,  so  as  to  redeem  him  for  what  he 
can  not  pay  —  then  he  shall  have  to  atone  with  his  life. 


Chap.  XX.]  THE   LEX  SALIC  A  511 

TITLE   LIX.    CONCERNING  PRIVATE   PROPERTY 

1.  If  any  man  die  and  leave  no  sons,  if  the  father  and  mother 
survive,  they  shall  inherit. 

2.  If  the  father  and  mother  do  not  survive,  and  he  leave  brothers 
or  sisters,  they  shall  inherit. 

3.  But  if  there  are  none,  the  sisters  of  the  father  shall  inherit. 

4.  But  if  there  are  no  sisters  of  the  father,  the  sisters  of  the 
mother  shall  claim  that  inheritance. 

5.  If  there  are  none  of  these,  the  nearest  relatives  on  the  father's 
iside  shall  succeed  to  that  inheritance. 

/  6.  But  of  Salic  land  no  portion  of  the  inheritance  shall  come 
to  a  woman :  but  the  whole  inheritance  of  the  land  shall  come  to 
the  male  sex. 


TITLE   LXII.    CONCERNING  WERGELD 

1.  If  any  one's  father  have  been  killed,  the  sons  shall  have  half 
the  compounding  money  (wergeld) ;  and  the  other  half  the  nearest 
relatives,  as  well  on  the  mother's  as  on  the  father's  side,  shall 
divide  among  themselves. 

2.  But  if  there  are  no  relatives,  paternal  or  maternal,  that  por- 
tion shall  go  to  the  fisc. 


Chapter  XXI 
KING  iETHELBIRHT'S   DOOMS  ^ 

These  are  the  Dooms  which   King   Mthelhirht  established  in    the 
Days  of  Augustine. 

1.  The  property  of  God  and,  of  the  church,  twelve-fold^;  a 
bishop's  property,  eleven-fold;  a  priest's  property,  nine-fold; 
a  deacon's  property,  six-fold;  a  clerk's  property,  three-fold; 
*  church-frith,'  ^  two-fold ;    *  m frith,'   two-fold. 

2.  If  the  king  calls  his  '  leod  '  ^  to  him,  and  any  one  there  do 

1  [From  Benjamin  Thorpe's  "Ancient  Laws  and  Institutes  of  England" 
(vol.  i,  Secular  Laws) ;  (comprising  Laws  enacted  under  the  Anglo-Saxon 
Kings  from  ^thelbirht  to  Cnut,  with  an  English  Translation  of  the  Saxon  ; 
the  Laws  called  Edward  the  Confessor's ;  the  Laws  of  William  the  Con- 
queror, and  those  ascribed  to  Henry  the  First ;  also,  Monumenta  Eecle- 
siastica  Anglicana,  from  the  seventh  to  the  tenth  century ;  and  the 
ancient  Latin  version  of  the  Anglo-Saxon  laws,  with  a  compendious 
glossary,  &c.),  printed  by  command  of  King  William  IV  under  the 
direction  of  the  Commissioners  on  the  Public  Records  of  the  Kingdom 
(1840).] 

^Ethelbirht,  king  of  Kent,  forfp^-an  succession  after  Hengist,  was  bap- 
tized by  Augustine  in  the  yearf597,>nd  died,  according  to  Beda,  after  a 
reign  of  56  years,  on  the  24th  of  SVfefuary  616.  "  Hist.  Eecles."  ii.  5.  The 
laws  of  ^thelbirht,  as  well  as  those  of  the  other  Kentish  kings,  are  taken 
from  the  "Textus  Roffensis,"  the  only  ancient  ms.  in  which  they  are 
found.  In  this  copy,  which  is  of  the  twelfth  century,  each  series  is  written 
continuously ;  the  several  laws  being  distinguished,  though  not  always 
accurately,  by  a  large  initial  letter.  The  numbers  prefixed  to  the  different 
laws  are  from  the  edition  published  by  Hickes  in  his  "Thesaurus,"  and  were 
probably  added  by  J.  a  Laet ;  for  the  convenience  of  reference  which  they 
afford,  they  are  here  retained. 

2  There  is  no  verb  in  this  law  to  fix  the  sense ;  but  we  learn  from  Beda 
that  it  is  to  be  understood  of  the  property  of  the  church  when  stolen.  .  . 

"  Hist.  Eccl."  ii.  5. 

3  The  Church-frith  is  what  in  the  later  documents  is  called  the  Church- 
grith,  or  right  of  sanctuary  and  protection  given  to  those  within  its  pre- 
cincts. By  the  present  law,  any  infraction  of  this  privilege  subjected  the 
offender  to  a  two-fold  penalty,  or  twice  the  amount  of  the  fine  payable 
for  an  invasion  of  the  ordinary  frith,  or  what  in  modern  times  has  been 
termed  a  breach  of  the  peace. 

*  I  have  been  unable  to  discover  whether  this  meant  a  particular  class 
of  persons,  such  as  the  Leudes  of  France:  or  whether  it  is  used  in  the 
ordinary  sense  of  'people.'  ... 

512 


Chap.  XXI.]  KING  ^THELBIRHT's  DOOMS  513 

them  evil,  [let  him  compensate  with]  a  two-fold  *  hot,'  ^  and 
L.  shillings  ^  to  the  king. 

3.  If  the  king  drink  at  any  one's  home,^  and  any  one  there 
do  any  'lyswe/  ^  let  him  make  two-fold  'hot.' 

4.  If  a  freeman  steal  from  the  king,  let  him  pay  nine-fold. 

5.  If  a  man  slay  another  in  the  king's  'tun,'^  let  him  make 
*b6t'  with  L.  shillings. 

6.  If  any  one  slay  a  freeman,  l.  shillings  to  the  king,  as  'drihtin- 
beah.'  ^ 

7.  If  the  king's  'ambiht-smith,'  or  Uaad-rinc,'  slay  a  man,  let 
him  pay  a  half  *leod-geld.'  ^ 

8.  The  king's  *mund-byrd/ ^  l.  shiUings. 

^  Wherever  the  term  '  bote '  occurs,  it  is  to  be  understood  of  the  compen- 
sation due  to  the  injured  party,  as  damages  for  the  wrong  sustained.  This, 
as  in  cc.  4,  5,  10,  11,  12,  may  be  due  to  the  king  in  his  personal  or 
private  capacity,  as  well  as  to  others.  The  penalty  due  to  the  crown 
by  way  of  fine  was  called  the  wite  (see  c.  9.).  Both  forfeitures  are  thus 
spoken  of  by  Tacitus :  'Pars  mulctse  regi  vel  civitati,  pars  ipsi,  qui  vindi- 
catur,  vel  propinquis  ejus  exsolvitur.'     "  Germ."  c.  12. 

2  The  value  of  the  Kentish  shilling  is  altogether  a  matter  of  inference. 
According  to  cc.  69,  70,  71,  of  these  dooms,  compared  with  ce.  53,  54,  the 
shilling  contained  xx.  scsetts,  and  from  a  passage  which  will  be  found  in 
another  part  [not  reprinted],  as  a  portion  of  the  Mercian  law,  we  learn 
that  thirty  thousand  scsetts  were  equal  to  one  hundred  and  twenty  pounds 
of  silver.  .  .  .  Hence,  according  to  Mercian  law, 'a  king's  simple  wer-gild  is 
equal  to  the  were  of  six  thanes,  that  is,  thirty  thousand  scaetts,  whicli  make 
one  hundred  and  twenty  pounds.'  By  this  it  would  appear  that  the  pound 
contained  250  scsetts,  or  12|  shillings,  which  would  make  the  scsett  nearly 
equal  to  the  penny,  and  the  shilling  something  less  than  an  ounce  of  silver. 

3  By  Alfred  this  term  is  used  on  one  occasion  as  a  translation  of  the 
Latin  monasterium.  ...  In  another  passage  it  is  applied  in  a  far  more  ex- 
tended sense But  here  it  seems  to  be  equivalent  to  the  '  curtis '  of  the 

Barbaric  laws;  the  'hof,'  'huwe,'  of  Upper  and  Lower  Saxony.  In  Old- 
Frisic,  'ham'  meant  either  the  hof,  or  house  and  land  conjointly,  or  the 
house  itself.  The  terms  hof,  huwe,  hib,  ham,  and  hide,  are  clearly  synon- 
ymous ;  but  it  would  be  difficult  to  find  any  expressions  now  in  use  which 
would  convey  the  sense  of  either. 

^  The  same  term  occurs  below  (c.  72.),  with  a  slightly-varied  orthog- 
raphy. .  .    The  meaning  must  be  left  to  the  reader's  conjecture,  .  .  . 

^  In  the  Northern  parts  of  this  island  this  term  is  not  altogether  obso- 
lete in  its  original  sense ;  at  least,  it  is  not  many  years  since  'in  Scotland 
a  single  house  was  called  a  town;'  in  Ireland  it  is  still  called  a  township. 
The  nature  of  such  a  settlement  is  thus  described  by  Tacitus:  'Vicos 
locant  non  in  nostrum  morem,  connexis  et  cohserentibus  sedificiis :  suam 
quisque  domum  spatio  circumdat.'  "  Germ."  c.  16.  The  economy  of  a 
royal  vill,  in  even  its  minutest  particulars,  will  be  found  in  the  Capitulare 
de  Villis  of  Charlemagne. 

^  Literally  as  a  lord-ring.  In  the  later  dooms  this  fine  is  called  the 
man-bote  (See  Edw.  Conf.  12.),  whether  paid  to  the  king  or  a  subject. 

J  The  'leod-geld,'  or,  as  it  is  called,  c.  31,  the  'wer-geld,'  was  the  sum 
paid  to  the  family  of  a  man  who  had  been  slain,  as  a  compensation  for 
the  death  of  their  kinsman.  In  the  Latin  documents  these  terms  are 
usually  translated,  'compositio,  solutio,  hominis  occisi.' 

*  Protection :  but  the  fine  here  imposed  is  for  an  infraction  of  the 
round-byrd,  or  what  in  the  later  dooms  is  called  'mund-bryce.'  Under 
this  head  are  to  be  classed  the  penalties  spoken  of  in  cc.  2,  6. 


514  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

9.  If  a  freeman  steal  from  a  freeman,  let  him  make  threefold 
'bot' ;  and  let  the  king  have  the  'wite'  and  all  the  chattels. 

10.  If  a  man  lie  with  the  king's  maiden/  let  him  pay  a  'hot' 
of  L.  shillings. 

11.  If  she  be  a  grinding  slave,  let  him  pay  a  'hot'  of  xxv. 
shillings. 

12.  Let  the  king's  'fed-esl'  [nurse?]  be  paid  for  with  xx. 
shillings. 

13.  If  a  man  slay  another  in  an  'eorl's'  'tun,'  let  him  make 
'bot'  with  XII.  shilHngs. 

14.  If  a  man  lie  with  an  'eorl's'  'birele,'  ^  let  him  make  'bot' 
with  XII.  shillings. 

15.  A  'ceorl's'  'mund-byrd,'  vi.  shillings. 

16.  If  a  man  lie  with  a  'ceorl's'  'birele,'  let  him  make  'bot' 
with  VI.  shiUings ;  with  a  slave  of  the  second  [class],  l.  'scsetts '  ^ ; 
with  one  of  the  third,  xxx.  'scsetts.' 

17.  If  any  one  be  the  first  ^  to  make  an  inroad  into  a  man's 
'tun,'  let  him  make  'bot'  with  vi.  shillings;  let  him  who  follows, 
with  III.  shillings ;   after,  each,  a  shilling. 

18.  If  a  man  furnish  weapons  to  another  where  there  is  strife, 
though  no  evil  be  done,  let  him  make  'bot'  with  vi.  shiUings. 

19.  If  'weg-reaf'^  be  done,  let  him  make  'b5t'  with  vi. 
shillings.  /'     i 

1  It  is  clear  from  the  context  that  the  person  here  spoken  of  was  of  the 
servile  classes.  The  Salic  Law  notices  a  'regis  ancilla'  (Tit.  27.),  and  the 
Ripuarian  law  an  'ancilla  regia'  (Tit.  58,  §9,  14.),  but  without  giving 
us  any  further  knowledge  of  their  duties.  From  cc.  14,  16.  it  might  be 
inferred  that  the  msegden-man  was  a  cupbearer,  if  such  an  office  in  the 
royal  household  could  be  supposed  to  have  been  conferred  on  a  female. 
In  Beowulf  the  mead  is  distributed  by  females,  but  then  they  are  royal 
personages. 

2  A  female  cup-bearer. 

3  It  has  been  already  stated,  on  the  authority  of  a  passage  in  the  Mer- 
cian law,  that  there  were  250  scaetts  in  a  pound  of  silver.  An  examination 
of  those  which  remain  gives  an  average  of  from  15  to  18  or  19  grains  of 
silver,  though  some  have  been  found  to  contain  20  grains.  Ruding's 
"Annals  of  the  Coinage,"  vol.  i.  p.  296. 

*  The  power  of  '  ge '  in  composition  can  only  be  gathered  from  the 
context  in  these  early  specimens  of  the  Anglo-Saxon  language ;  and  though 
the  translation  adopts  the  import  of  the  simple  verb,  it  is  evident  that  a 
forcible  entry  of  some  kind  is  here  intended. 

5  This  appears  to  have  been  a  similar  offence  with  the  Longobardic 
*weg-worte'  {Ed.  Rotharis,  c.  26),  and  perhaps  the  later  'fore-steal,' 
when  this  was  attended  with  robbery.  It  might  be  termed  a  highway 
robbery,  were  it  not  that  this  offence  has  acquired  a  technical  sense  which 
can  hardly  have  been  required  to  make  out  a  case  of  weg-reaf.  With 
this  law  it  is  conceived  the  succeeding  one  ought  to  be  connected,  and  that 
their  object  is  to  declare,  that  for  simple  weg-reaf  the  fine  should  be  6s., 
but  for  weg-reaf  attended  by  homicide,  20s.,  in  addition  to  the  'Leod* 
geld,'  &c. 


Chap.  XXI.]  KING  ^THELBIRHt's  DOOMS  515 

20.  If  the  man  be  slain,  let  him  make  'bot^  with  xx.  shillings. 

21.  If  a  man  slay  another/  let  him  make  'bot'  with  a  half 
*leod-geld'  of  c.  shillings. 

22.  If  a  man  slay  another  at  an  open  grave,  let  him  pay  xx. 
shillings,  and  pay  the  whole  'leod'  within  xi.  days. 

23.  If  the  slayer  retire  from  the  land,  let  his  kindred  pay  a 
half  ^eod.' 

24.  If  any  one  bind  a  freeman,  let  him  make  'bot'  with  xx. 
shillings. 

25.  If  any  one  slay  a  ^  ceorl's'  'hlaf-8eta,'  ^  let  him  make  'bot' 
with  VI.  shilhngs. 

26.  If  [any  one]  slay  a  'Iset'  of  the  highest  class,  let  him  pay 
Lxxx.  shillings ;  if  he  slay  any  one  of  the  second,  let  him  pay  LX. 
shilhngs ;   of  the  third,  let  him  pay  XL.  shilhngs. 

27.  If  a  freeman  commit  *  edor '-breach,^  let  him  make  'bot' 
with  VI.  shillings. 

28.  If  any  one  take  property  from  a  dwelling,  let  him  pay 
a  three-fold  'bot.' 

29.  If  a  freeman  pass  over  an  'edor,'  let  him  make  'bot'  with 
IV.  shillings. 

30.  If  a  man  slay  another,  let  him  pay  with  his  own  money, 
and  with  any  sound  property  whatever. 

31.  If  a  freeman  lie  with  a  freeman's  wife,  let  him  pay  for  it 
with  his  *wer-geld,'  and  provide  ^  another  wife  with  his  own 
money,  and  bring  her  to  the  other. 

32.  If  any  one  thrust  through  the  'riht  ham-seyld,'  let  him 
adequately  compensate. 

33.  If  there  be  *feax-fang,'  ^  let  there  be  l.  scaetts  for  ^bot.' 

34.  If  there  be  an  exposure  of  the  bone,  let  ^bot'  be  made 
with  III.  shillings. 

^  That  is,  if  one  freeman  (ingenuus)  kill  another. 

2  Literally  the  'loaf -eater,'  and  consequently  a  domestic  or  menial 
servant, 

3  It  is  clear,  from  the  laws  of  Alfred,  c.  36,  that  edorbryce  was  the  same 
offence  against  a  eeorl  that  burhbryce  was  against  a  person  of  higher  rank. 
It  cannot  therefore  mean  a  mere  breaking  of  his  residence. 

^  The  practice  here  referred  to,  of  purchasing  the  bride,  will  be  illus- 
trated below  in  the  notes  to  the  Kentish  custumal  respecting  marriage 
forms,  usually  printed  as  a  part  of  the  laws  of  Edmund.  It  is  thus  alluded 
to  in  Theodoric's  letter  to  Hermanfrid,  king  of  Thuringen :  'Quapropter 
salutantes  yos  gratia  competenti,  indicamus  nos  venientibus  legatis  vestris 
impretiabilis  quidem  rei,  sed  more  gentium  suscepisse  pretia  destinata, 
equos  argenteo  colore  vestitos,  quales  decuit  esse  nuptiales,'  Bouquet, 
iv.  p.  8.  Cf.  Tacitus,  "  Germ."  c.  18. 

^  A  taking  hold  by  the  hair:  'Si  ilium  per  eapillos  comprehenderit 
similiter  ter  quatuor  solidos  componat.'  Lex  Frisionum,  addit.  tit.  iii. 
c.  40. 


516  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

35.  If  there  be  an  injury  of  the  bone,  let  'bot'  be  made  with  iv. 
shiUings. 

36.  If  the  outer  *hion'  [membrane?]  be  broken,  let  'bot'  be 
made  with  x.  shillings. 

37.  If  it  be  both,  let  'bot'  be  made  with  xx.  shiUings. 

38.  If  a  shoulder  be  lamed,  let '  bot '  be  made  with  xxx.  shillings. 

39.  If  an  ear  be  struck  off,  let  '  bot '  be  made  with  xii.  shillings. 

40.  If  the  other  ear  hear  not,  let  'bot'  be  made  with  xxv. 
shiUings. 

41.  If  an  ear  be  pierced,  let  'bot'  be  made  with  iii.  shillings. 

42.  If  an  ear  be  mutilated,  let  'bot'  be  made  with  vi.  shiUings. 

43.  If  an  eye  be  [struck]  out,  let  'bot'  be  made  with  l.  shUUngs. 

44.  If  the  mouth  or  an  eye  be  injured,  let  'bot'  be  made  with 
XII.  shiUings. 

45.  If  the  nose  ^  be  pierced,  let  'bot'  be  made  with  jx.  shiUings. 

46.  If  it  be  one  'ala,'  let  'bot'  be  made  with  in.  shillings. 

47.  If  both  be  pierced,  let  'bot'  be  made  with  vi.  shiUings. 

48.  If  the  nose  be  otherwise  mutilated,  for  each  let  'bot'  be 
made  with  vi.  shillings. 

49.  If  it  be  pierced,  let  'bot'  be  made  with  vi.  shiUings. 

50.  Let  him  who  breaks  the  chin-bone  pay  for  it  with  xx. 
shiUings. 

51.  For  each  of  the  four  front  teeth,  vi.  shillings ;  for  the  tooth 
which  stands  next  to  them  iv.  shiUings;  for  that  which  stands 
next  to  that,  in.  shUlings ;  and  then  afterwards,  for  each  a  shiUing. 

52.  If  the  speech  be  injured,  xii.  shillings.  If  the  collar  bone 
be  broken,  let  'bot'  be  made  with  vi.  shillings. 

53.  Let  him  who  stabs  [another]  through  an  arm,^  make  'bot' 
with  VI.  shillings.  If  an  arm  be  broken,  let  him  make  'bot'  with 
VI.  shillings. 

54.  If  a  thumb  be  struck  off,  xx.  shiUings.     If  a  thumb  nail 

1  The  Frisian  law  is  equally  particular  in  all  the  possible  injuries  which 
can  affect  this  feature,  and  will  throw  some  light  on  the  obscurities  of  the 
present  text.  'Thiu  nosi  thruch-sketen  thi  ingong  tian  enza  and  achta 
panninga ;  thi  utgong  alsa  felo ;  thera  inra  rftutha  iawelikes  bote  twilif 
skill',  thi  gristel  fiuwer  skill' ;  thera  thrira  domma  gersfal  iahwelikes  bote 
sex  and  thritich  skill' :  If  the  nose  be  pierced  through,  for  the  entrance, 
10  oz.  and  8c^. ;  for  the  exit  as  much.  The  bote  of  each  of  the  inner 
mouths  {i.e.  the  nostrils)  is  12s. ;  the  gristle,  4s.  The  bote  for  cutting 
off  the  three  dams  {i.e.  the  sides  and  the  cartilage)  is  for  each  36s.' 
Asega-Buch,  p.  iii.  §  5.  And  again  :  'Thiu  nosi  thruch-sketen  :  thi  forma 
wach  fiarda  thrimine  lad,  thi  other  and  thi  thredda  alsa  felo :  The  nose 
pierced  through  —  the  first  wall,  3f  loths  ;  the  second  and  third,  as  much.' 
Ih.  §  16. 

2  'Si  quis  alio  hrachium  super  cubitum  transpunxerit  cum  sex  solidis 
componat.'     Lex  Alamann.  Tit.  Ixv.  c.  3. 


Chap.  XXI.]  KING  ^THELBIRHT's   DOOMS  517 

be  off,  let  '  bot '  be  made  with  iii.  shillings.  If  the  shooting  ^ 
(i.e.  fore)  finger  be  struck  off,  let  'bot'  be  made  with  viii.  shillings. 
If  the  middle  finger  be  struck  off,  let  '  bot '  be  made  with  iv.  shil- 
lings. If  the  gold  ^  (i.e.  ring)  finger  be  struck  off,  let  'bot'  be 
made  with  vi.  shillings.  If  the  little  finger  be  struck  off,  let  'bot' 
be  made  with  xi.  shiUings. 

55.  For  every  nail,  a  shilling. 

56.  For  the  smallest  disfigurement  of  the  face,  iii.  shillings; 
and  for  the  greater,  vi.  shillings. 

57.  If  any  one  strike  another  with  his  fist  on  the  nose,  iii. 
shillings. 

58.  If  there  be  a  bruise,  a  shilling ;  if  he  receive  a  right  hand 
bruise,  let  him  [the  striker]  pay  a  shilling. 

59.  If  the  bruise  be  black  in  a  part  not  covered  by  the  clothes, 
let  'bot'  be  made  with  xxx.  'scsetts.' 

60.  If  it  be  covered  by  the  clothes,  let  'bot'  for  each  be  made 
with  XX.  'scsetts.' 

61.  If  the  belly  be  wounded,  let  'b5t'  be  made  with  xii.  shil- 
Hngs ;  if  it  be  pierced  through,  let  'bot'  be  made  with  xx.  shillings. 

62.  If  any  one  be  'gegemed/  let  'bot'  be  made  with  xxx. 
shillings. 

63.  If  any  one  be  'cear-wund,'  let  'bot'  be  made  with  iii. 
shillings. 

64.  If  any  one  destroy  .  .  . 

65.  If  a  thigh  be  broken,  let  'bot'  be  made  with  xii.  shiUings ; 
if  the  man  become  halt,  then  the  friends  must  arbitrate. 

66.  If  a  rib  be  broken,  let  'bot'  be  made  with  iii.  shiUings. 

67.  If  a  thigh  be  pierced  through,  for  each  stab  vi.  shUUngs ; 
if  (the  wound  be)  above  an  inch,  a  shilling ;  for  two  inches,  ii. ; 
above  three,  iii.  shillings. 

68.  If  a  sinew  be  wounded,  let  'bot'  be  made  with  in. 
shillings. 

69.  If  a  foot  be  cut  off,  let  l.  shillings  be  paid. 

70.  If  a  great  toe  be  cut  off,  let  x.  shiUings  be  paid. 

71.  For  each  of  the  other  toes,  let  one  half  be  paid,  like  as  it 
is  stated  for  the  fingers. 

72.  If  the  naU  of  a  great  toe  be  cut  off,  xxx.  'scsetts'  for  'bot'  ; 
for  each  of  the  others,  make  'bot'  with  x.  'scsetts.' 

ySi  secundum  digitum  quo  sagittatur,  excusserit,  m.cccc.  den.  qui 
faeiunt  sol.  xxxv.  eulpabilis  judicetur.'     Lex.  Sal.  tit.  xxxii.  4. 

2  In  a  law  of  the  Conqueror  it  is  stated :  'Del'  lung  dei  (rendra)  xvi. 
sol. ;  del'  autre  ki  porte  lanel  xvii.  sol.'  (Holkham  ms.  142.  b.)  In  the 
Lex  Alamannorum,  Tit.  Ixv.  c.  21,  this  finger  is  called  'digitus  annularis.* 


518  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III, 

73.  If  a  freewoman  'loc-bore'  commit  any  'leswe,'  let  her  make 
a  'bot*  of  XXX.  shillings. 

74.  Let  '  maiden-bot '  be  as  that  of  a  freeman. 

75.  For  the  'mund'  ^  of  a  widow  of  the  best  class,  of  an  'eorl's^ 
degree,  let  the  '  bot '  be  l.  shillings ;  of  the  second,  xx.  shillings ; 
of  the  third,  xii.  shiUings ;  of  the  fourth,  vi.  shillings. 

76.  If  a  man  carry  off  a  widow  not  in  his  own  tutelage,  let  the 
*mund'  be  twofold. 

77.  If  a  man  buy  a  maiden  with  cattle,  let  the  bargain  standi 
if  it  be  without  guile;  but  if  there  be  guile,  let  him  bring  her 
home  again,  and  let  his  property  be  restored  to  him. 

78.  If  she  bear  a  Hve  child,  let  her  have  half  the  property,  if 
the  husband  die  first. 

79.  If  she  wish  to  go  away  with  her  children,  let  her  have  half 
the  property. 

80.  If  the  husband  wish  to  have  them,  [let  her  portion  be]  as 
one  child. 

81.  If  she  bear  no  child,  let  her  paternal  kindred  have  the 
'fioh'  and  the  'morgen-gyfe.' 

82.  If  a  man  carry  off  a  maideji  by  force,  let  him  pay  L.  shilUngs 
to  the  owner,  and  afterwards  buy  [the  object  of]  his  will  of  the 
owner. 

83.  If  she  be  betrothed  to  another  man  in  money,  let  him  make 
*bot'  with  XX.  shilHngs. 

84.  If  she  become  'gsengang,'  xxxv.  shillings ;  and  xv.  shilHngs 
to  the  king. 

85.  If  a  man  lie  with  an  'esne's'  wife,  her  husband  still  living, 
let  him  make  twofold  'bot.' 

86.  If  one  'esne'  slay  another  unoffending,  let  him  pay  for 
him  at  his  full  worth. 

87.  If  an  '  esne's '  eye  and  foot  be  struck  out  or  off,  let  him  be 
paid  for  at  his  full  worth. 

88.  If  any  one  bind  another's  *esne,'  let  him  make  'bot'  with 
VI.  shiUings. 

89.  Let  the  *weg-reaf'  of  a  'theow'  be  iii.  shillings. 

90.  If  a  'theow'  steal,  let  him  make  twofold  'bot.' 

]  The  Longobardic  Law  is  the  most  copious  of  all  the  Barbaric  codes 
in  its  provisions  respecting  marriage ;  and  is  particularly  so  on  the  sub- 
ject of  the  mund.  From  that  law  it  appears  that  the  'mundium'  was  a. 
sum  paid  to  the  family  of  the  bride,  for  transferring  the  tutelage  they 
possessed  over  her  to  the  family  of  the  husband.  .  .  . 


Chapter  XXII 

LAWS  OF  HOWEL  DDA* 

The  Venedotian  Code 

TABLE   OF  CONTENTS 

BOOK  I 

THE    LAWS   OF   THE    COURT 

Chap.  i.  Of  the  Officers  of  the  court,  ii.  Of  the  king.  iii.  Of 
the  queen,  iv.  Of  the  king's  retinue,  v.  Of  the  edUng.  vi.  Of 
appropriate  places,  vii.  Of  the  chief  of  the  household,  viii.  Of 
the  priest  of  the  household,  ix.  Of  the  steward,  x.  Of  the  chief 
falconer,     xi.  Of  the  judge  of  the  court,     xii.  Of  the  chief  groom. 

^  [Reprinted  from]  "Ancient  Laws  and  Institiites-iiLWales ;"  (compris- 
ing laws  supposed  to  be  enacted  by  Howel  the  Good,  modified  by  subse- 
quent regulations  under  the  native  princes  prior  to  the  conquest  by  Ed-,   — 
ward  the  First  and  Anomalous  Laws,  consisting  prinnipQiiy  r^f  jpofif^^|^jr^r.rf    ^ 
which  by  the  Statute  of  Ruddlan  were  adTTl^^tef^  t*^  p.nntimift  irL-farpftK^ 
with  an  English  translation  ot   the  Welsii  text  [by  Aneurin  Owen]  to 
which  are  added  a  few  Latin  transcripts,  containing  digests  of  the  Welsh 
laws,   principally  of  the  Dimetian  Code,   with  indexes  and  glossary), 
published  under  the  direction  of  The  Commissioners  on  the  Public  Rec- 
ords of  the  Kingdom,  1841.     [The  following  account  of  the  Laws  of  Howel 
is  taken  from  the  preface  of  the  above  compilation :] 

About  the  commencement  of  the  tenth  century  we  find  Howel  dda, 
or  Howel  the  good,  a  conspicuous  king  in  bouth'Wales,  in  the  government 
of  which  he  succeeded  his  father  Cadell,  He  inherited  from  his  mother 
Elen  possessions  in  Powys,  and  his  influence  appears  to  have  been  power- 
ful throughout  North  Wales.  To  him  are  we  indebted  for  the  collections 
of  laws  which  pass  under  the  name  of  the  Laws  of  Howel  dda,  .  .  . 

The  measures  he  adopted  for  the  amendment  of  the  laws  of  Wales  are 
briefly  set  out  in  the  prefaces  or  prologues  which  commence  the  several 
versions  of  them  printed  in  the  following  pages  [omitted  here] .  Perceiv- 
ing the  laws  and  customs  of  the  country  to  be  violated  with  impunity, 
and  to  be  falling  into  lesuetude,  he  caused  them  to  be  examined,  that 
so  what  was  wholesome  and  beneficial  might  be  retained,  what  was  ambig- 
uous might  be  expounded,  and  what  was  superfluous  or  prejudicial  might 
be  abrogated. 

Having  summoned  the  archbishop  of  Menevia,  other  bishops  and  the 
chief  of  the  clergy,  the  nobles  of  Wales,  and  six  persons  (four  laymen 
and  two  clerks)  from  each  comot,  to  meet  at  a  place  called  Y  Ty  Gwyn 
ar  Dav,  or  the  White  House  on  the  river  Tav,  he  repaired  thither  in 
person ;  and  having  spent  all  the  Lent  in  prayer  and  fasting,  he  selected 
from  the  whole  assembly  twelve  of  the  most  experienced  persons,  and 
added  to  their  number  a  clerk  or  doctor  of  laws,  named  Blegywryd.     To 

519 


520  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

xiii.  Of  the  page  of  the  chamber,  xiv.  Of  the  bard  of  the  house- 
hold. XV.  Of  the  silentiary.  xvi.  Of  the  chief  huntsman,  xvii.  Of 
the  mead  brewer,  xviii.  Of  the  mediciner  of  the  household, 
xix.  Of  the  butler,  xx.  Of  the  door-ward.  xxi.  Of  the  cook, 
xxii.  Of  the  candle-bearer,  xxiii.  Of  the  queen's  steward,  xxiv.  Of 
the  priest  of  the  queen,  xxv.  Of  the  chief  groom  of  the  queen, 
xxvi.  Of  the  page  of  the  chamber  to  the  queen,  xxvii.  Of  the 
handmaid,  xxviii.  Of  the  door- ward  to  the  queen,  xxix.  Of  the 
cook  to  the  queen,  xxx.  Of  the  candle-bearer  to  the  queen, 
xxxi.  Of  the  officers  in  the  court  by  custom  and  usage,  xxxii.  Of 
the  groom  of  the  rein,  xxxiii.  Of  the  foot-holder,  xxxiv.  Of  the 
land-maer  (bailiff),  xxv.  Of  the  apparitor,  xxxvi.  Of  the  porter, 
xxxvii.  Of  the  watchman,  xxxviii.  Of  the  woodman,  xxxix.  Of 
the  baking-woman,  xl.  Of  the  smith  of  the  court,  xli.  Of  the 
chief  of  song.     xlii.  Of  the  laundress,     xliii.  Of  other  things. 

BOOK  II 

THE    LAWS    OF    THE    COUNTRY 

Chap.  i.  The  laws  of  the  women,  ii.  The  privileges  of  Arvon. 
iii.  Triads,  iv.  Of  the  nine  tavodiogs  (advocates),  v.  Of  wound- 
ing an  animal,  vi.  Of  the  claim  of  surety  and  debtor,  vii.  Con- 
cerning a  briduw  (solemn  asseveration  to  the  truth  of  a  thing  by 
a  person  on  his  faith),  viii.  Of  a  contract,  ix.  Of  gorvodogaeth 
(surety  for  any  person  accused  of  crime),  x.  Of  church  protec- 
tion, xi.  Laws  concerning  landed  property,  and  the  form  of 
pleading  in  respect  thereto,  xii.  The  law  of  brothers  for  land, 
xiii.  The  law  of  dadenhudd  (suit  for  recovery  of  patrimony)  for' 
land  and  soil.  xiv.  Mode  of  suing  for  land  by  kin  and  descent. 
XV.  A  woman  is  not  to  have  patrimony  according  to  the  men  of 
Owynedd.     xvi.  An  innate  boneddig  (free  Welshman  of  indigenous 

these  thirteen  was  confided  the  task  of  examining,  retaining,  expounding, 
and  abrogating. 

The  compilation  of  laws,  which  resulted  from  their  labours,  was,  when 
completed,  read  through,  allowed,  and  proclaimed ;  and  Howel  caused 
three  copies  of  them  to  be  written,  one  of  which  was  to  accompany  the 
court  for  daily  use,  another  was  deposited  in  the  court  at  Aberfraw,  and 
a  third  at  Dinevwr. 

That  nothing  might  be  wanting  to  strengthen  the  observance  of  these 
laws,  sentence  of  excommunication  was  denounced  against  all  transgres- 
sors, and  soon  after  Howel  went  to  Rome,  attended  by  the  archbishop 
of  St.  David's,  the  bishops  of  Bangor  and  St.  Asaph,  and  thirteen  other 
personages.  The  laws  were  recited  before  the  Pope,  and  confirmed  by 
his  authority ;    upon  which  Howel  and  his  companions  returned  home. 

[The  glossary  terms  appearing  as  a  part  of  the  above  compilation 
have  been  inserted  at  the  appropriate  places.] 


Chap.  XXII.J  LAWS   OF   HOWEL  DDA  521 

descent),  xvii.  Of  the  laws  of  Dyvnwal  Moel  Mud,  and  of  meas- 
ure, xviii.  Of  the  duty  of  the  maers  (court  held  on  land  in  dispute) 
and  the  canghellors  (officers  who  determine  disputes)  and  their 
service,  xix.  Of  the  service  of  a  chief  of  a  kindred,  his  privilege, 
and  due.  xx.  Of  work  on  the  king's  buildings,  xxi.  The  tunc  (a 
territorial  division)  of  a  free  maenol.  xxii.  Of  meer  breach, 
xxiii.  Of  ploughing  land  surreptitiously,  xxi  v.  Of  defining  of 
meers.  xxv.  Of  removing  a  public  meer  stone,  xxvi.  The  meas- 
ure of  the  king's  gwestva  (provision,  or  money  payment  in  lieu  of 
it)  from  a  free  maenol.  xxvii.  The  amount  due  from  bond  maenols. 
xxviii.  Of  the  foetus  of  a  woman,  if  injured,  xxix.  Of  the  worth 
of  an  innate  boneddig.  xxx.  Of  the  law  of  a  daughter,  and  her 
rights,     xxi.  Of  denying  and  receiving  a  son. 

BOOK  III 

PROOF    BOOK 

Preface :    The  law  of  the  functions  of  a  judge. 

Chap.  i.  Of  the  nine  accessories  of  galanas  (sum  assessed  upon 
the" criminal  and  his  relatives),  ii.  Of  the  nine  accessories  of  theft, 
iii.  Of  the  nine  accessories  of  fire.  iv.  Of  the  worth  of  wild  and 
tame  animals,  v.  Of  the  worth  of  a  mare,  and  her  teithi  (quality), 
vi.  Of  the  worth  of  a  cow,  and  her  teithi.  vii.  Of  the  worth  of  an 
ox,  and  his  teithi.  viii.  Of  the  worth  of  swine,  and  their  teithi. 
ix.  Of  the  worth  of  sheep,  and  their  teithi.  x.  Of  the  worth  of 
goats,  and  their  teithi.  xi.  The  worth  of  a  cat,  and  her  teithi. 
xii.  Of  the  worth  of  geese  and  other  birds,  xiii.  Of  the  worth  of 
fowls,  xiv.  The  worth  of  dogs.  xv.  The  w^orth  of  hawks,  xvi.  Of 
the  bees.  xvii.  Of  the  worth  of  a  hart,  xviii.  Of  the  king's 
hunting,  xix.  Of  skins,  xx.  Of  the  worth  of  trees.  The  worth 
of  the  buildings,  and  the  furniture,  co-tillage,  and  corn  damage, 
xxi.  The  worth  of  a  hall.  xxii.  The  worth  of  the  furniture, 
xxiii.  The  worth  of  the  members  of  the  human  body,  xxi  v.  Of 
co-tillage,     xxv.  Of  corn  damage. 

BOOK  I 

THE    LAWS    OF   THE    COURT 

Chap.  xi.     Judge  of  the  court. 

******* 

2.  He  is  to  have  his  land  free;  and  his  horse  in  attendance; 
and  his  linen  clothing  from  the  queen,  and  his  woollen  clothing 
from  the  king. 


522  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

3.  His  place  is  opposite  to  the  king,  on  the  other  side  of  the  fire, 
next  to  the  priest  of  the  household. 

4.  His  lodging  is  the  chamber  in  which  the  king  sleeps :  he  is 
to  have  a  pillow  and  bed  linen  from  the  queen ;  and  the  cushion 
whereon  the  king  sits,  during  the  day,  shall  be  under  his  head 
at  night :  others  say  that  he  is  not  to  lodge  out  of  the  hall. 

5.  His  horse  is  to  be  between  the  king's  horse  and  the  wall, 
and  is  to  have  two  shares  of  provender. 

6.  He  is  to  have  a  "throw-board"  of  the  bone  of  a  sea-animal 
from  the  king,  and  a  gold  ring  from  the  queen,  and  another  from 
the  bard  of  the  household ;  and  these  trinkets  he  is  neither  to  sell 
nor  give  away  whilst  he  lives. 

7.  He  is  to  have  one  man's  share  with  the  servants. 

8.  He  is  to  have  from  the  chief  groom  his  horse,  complete  from 
the  first  nail  to  the  last,  and  saddled,  and  brought  to  him  when  he 
rides. 

9.  ,The  porter  is  to  open  the  great  gate  for  him  when  coming 
to  the  palace,  both  in  going  in  and  out :  and  he  is  never  to  let 
him  through  the  wicket,  either  in  going  or  coming. 

10.  He  is  to  have  one  man's  share  of  the  groom's  silver. 

11.  He  is  to  have  from  the  spoil  made  by  the  household  of 
the  king  in  a  border-country,  after  the  king  has  had  his  third, 
the  ox  he  may  choose. 

12.  He  is  to  have  for  all  causes  of  landed  property  twenty-four 
pence,  between  him  and  the  other  judges,  of  which  two  shares 
belong  to  him. 

13.  He  is  to  administer  justice  to  the  court,  the  household,  and 
to  whoever  pertains  to  them,  without  fee. 

14.  He  is  to  have  a  trained  sparrow-hawk,  or  a  male  hawk, 
from  the  chief  falconer. 

15.  He  is  the  third  indispensable  man  to  the  king. 

16.  He  is  to  have  twenty-four  pence  from  every  judge  whom 
he  may  examine :  and  where  he  may  administer  justice  in  con- 
junction with  other  judges,  he  is  to  have  the  share  of  two  men. 

17.  His  protection  is  unto  the  queen.  Whoever  may  apply  to 
him  for  protection  shall  obtain  it,  from  the  time  he  shall  com- 
mence the  summary  of  the  first  cause,  until  he  shall  finish  the  last 
for  that  day. 

18.  If  a  man  enter  into  mutual  pledges  with  the  judge  of  the 
court,  or  with  another  judge;  if  that  person  can  prove  that  the 
judge  has  pronounced  a  wrong  sentence,  let  the  judge  lose  his 
tongue,  or  otherwise  let  him  redeem  it  of  the  king  for  its  legal 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  .         523 

worth  :  but  if  the  judge  shall  be  in  the  right,  let  the  party  pay  him 
his  saraad  (fine  for  insult). 

19.  His  saraad  is  six  kine,  and  six  score  of  silver,  to  be  aug- 
mented. 

20.  His  worth  is  six  score  and  six  kine,  to  be  augmented. 

BOOK  II 

THE   LAWS   OF   THE    COUNTRY 

Chap.  i.     The  laws  of  the  women. 

1 .  The  first  of  them  is :  if  a  woman  be  given  in  marriage,  she 
is  to  abide  by  her  "agweddi"  (marriage  portion)  unto  the  end  of 
the  seventh  year;  and  if  there  be  three  nights  wanting  of  the 
seventh  current  year,  and  they  separate,  let  them  share  into  two 
portions  everything  belonging  to  them. 


54.  If  a  man  willeth  to  separate  from  his  wife,  and  after  he 
shall  have  separated,  willeth  another  wife ;  the  first,  that  has  been 
divorced,  is  free :  for  no  man  is  to  have  two  wives. 

55.  Every  woman  is^to  goTKe~way  sl^e  willeth,  freely,  for  she 
is  not  to  be  revenant;  and  nothing  is  due  from  her,  except  her 
amobyr  (marriage  fee),  and  only,  one  amobyr;  for  a  woman  owes 
no  ebediw  (a  relief  payable  to  the  superior  lord),  only  her  amobyr ; 
therefore,  as  a  man  is  to  pay  only  one  ebediw,  in  like  manner, 
a  woman  is  to  pay  only  one  amobyr ;  for  there  is  no  ebediw  from 
her,  only  her  amobyr. 

56.  A  woman  cannot  be  admitted  as  surety,  or  witness  con- 
cerning a  man. 

58.  If  a  Welsh  female  be  given  to  an  alltud  (person  from  foreign 
parts),  her  saraad  shall  be  according  to  the  privilege  of  her  hus- 
band, until  the  alltud  shall  die ;  and,  after  the  death  of  the  alltud, 
until  she  take  another  husband ;  since  she  is  not  to  revert  to  the 
privilege  of  her  kindred. 

59.  If  a  Welsh  female  be  given  to  an  alltud,  and  they  have 
male  children,  the  children  are  entitled  to  inheritance  by  ma- 
ternity ;  but  they  are  not  to  have  a  share  of  the  privileged  farm, 
until  the  third  generation;  excepting  the  son  of  an  alltud  chief- 
tain ;  and  he  is  to  have  a  share  of  the  whole  without  delay :  the 
sons  of  such  women  are  to  pay  cattle  without  surety ;    and  the 


k 


524  ANCIENT  AND   PRIMITIVE   L.\WS  AND   CODES  [Part  III. 

reason  that  such  cattle  are  called  cattle  without  surety  is,  because 
there  is  no  kindred  of  the  father  to  pay  them,  but  the  mother's 
kindred  alone. 

60.  A  woman  ought  neither  to  buy  nor  sell  without  consent 
of  the  husband  unless  she  be  a  proprietrix :  if  she  be  a  proprietrix, 
however,  she  may  buy  and  sell. 

61.  Three  women  whose  sons  are  to  have  the  privilege  of 
maternity  according  to  law :  the  son  of  a  Welsh  female  given  to 
an  alltud ;  the  son  of  a  woman  given  as  an  hostage  to  a  foreign 
country,  if  she  become  pregnant,  being  given  as  an  hostage  by 
her  kindred  and  her  lord ;  and  of  a  woman  upon  whom  an  alltud 
shall  have  committed  a  rape. 

64.  A  daughter  is  to  have,  of  her  father's  property,  only  half 
the  share  a  brother  shall  have;  and  she  is  to  pay  for  galanas 
(fine  imposed  upon  a  criminal  and  his  relatives)  only  the  half  of 
what  a  brother  shall  pay ;  and  that  for  her  children :  and  if  she 
have  no  children,  and  she  swear  that  there  never  will  be  any,  she 
is  to  pay  nothing;  and  if  there  be  children  arrived  at  legal  age, 
let  them  pay  on  their  own  account  thenceforward. 

65.  No  woman  in  the  world,  old  or  young,  is  to  pay  the  spear 
penny. 

70.  If  a  woman  be  given  to  a  man,  and  her  property  specified, 
and  the  whole  of  the  property  had,  except  one  penny,  and  that 
be  not  had,  we  say  that  the  man  may  separate  from  her  on 
that  account,  and  she  cannot  reclaim  any  of  her  property :  and 
that  is  the  single  penny  that  takes  away  a  hundred. 

71.  Surety  is  not  requisite  for  the  dilysrwydd  (warranty  given 
by  a  seller)  of  property  which  a  woman  brings  as  her  portion. 

72.  A  woman  is  entitled  to  the  third  of  the  saraad  of  her  hus- 
band, whether  from  his  homicide,  or  from  any  other  cause. 

73.  A  "raith"  (compurgation  jury)  of  women  is  not  to  go  with 
a  woman,  either  for  theft  or  for  murder  or  for  surety,  but  a  raith 
of  men. 

76.  If  a  woman  be  slandered  on  account  of  a  man;  the  first 
time,  the  oaths  of  seven  women  exculpate  her;  the  second  time, 
the  oaths  of  fourteen  women;  the  third  time,  the  oaths  of  fifty 
women ;  and  thence  onward,  for  every  slander,  the  oaths  of  fifty 
women. 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  525 

77.  If  a  woman  kill  a  man,  she  is  to  have  the  spear  penny: 
and  this  is  the  person  who  receives,  but  does  not  pay. 

78.  Every  lady  is  entitled  to  the  amobyr  of  the  women  of  her 
domain. 

79.  Every  land  maer  is  to  have  the  amobyr  of  the  women  of 
the  maer-trev. 


81.  For  every  offense  that  a  woman  may  commit,  let  her  kin- 
dred pay  for  her,  as  for  a  man,  unless  she  be  married ;  but  if  she 
be  married,  let  her  and  her  husband  pay  her  camlwrw  (a  fine  of 
three  kine  or  nine  score  pence)  and  her  dirwy  (fine  of  12  kine,  or 
three  pounds). 


Chap.  iv.     Of  the  nine  Tavodiogs. 

First,  are  the  Nine  Tavodiogs  (advocates) :  These  are, 

1.  A  lord  between  his  two  servants  : 

2.  A  priest  between  his  two  monks : 

3.  A  father  between  his  two  sons : 

If  one  of  those  we  have  mentioned  above  does  not  will  to  sub- 
mit to  the  decision  of  the  three  tavodiogs,  and  the  other  wills  it ; 
the  law  requires  submission  to  their  decision. 

4.  The  fourth  is  a  judge,  respecting  his  judgment : 

If  one  of  two  parties  between  whom  a  lawsuit  has  taken  place 
deny  the  judgment,  and  the  other  acknowledge  it ;  the  statement 
of  the  judge  is,  in  that  case,  final  respecting  his  judgment. 

5.  The  fifth  is  a  surety,  respecting  his  suretyship : 

If  he  acknowledged,  and  the  one  party  should  say,  that  the 
surteyship  is  for  great  matter,  and  the  other,  that  it  is  for  a  small 
matter;  since  the  surety  has  been  acknowledged,  he  is  to  be 
believed  as  to  what  it  has  been  given  for ;  and  what  he  says  can- 
not be  denied. 

6.  The  sixth  is  a  giver,  respecting  his  gift ;  which  is  thus : 

If  a  man  should  give  a  thing,  and  one  of  two  men  should  say : 
"It  was  given  to  me";  and  the  other  say:  "No,  to  me  it  was 
given" ;  his  word  is  decisive,  in  what  manner  he  gave  it,  and  in 
what  manner  he  did  not  give  it. 

7.  The  seventh  is  a  maid,  respecting  her  maidenhood. 

8.  The  eighth  is  the  herdsman  of  a  hamlet : 

If  a  beast  belonging  to  any  person  be  killed  by  the  animals  of 


526  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Pakt  III. 

other  owners,  and  it  be  inquired  into ;  the  testimony  of  the  herds- 
man is  decisive,  as  to  which  ox  killed  the  other. 

9.  The  ninth  is  a  thief,  at  the  gallows,  respecting  his  fellow 
thieves : 

If  he  should  assert  that  another  person  was  an  accessory  with 
him  in  the  robbery  for  which  he  is  about  to  suffer ;  and  he  should 
persist  in  his  assertion  unto  the  state  God  went  to,  and  he  is 
going  to ;  his  word  is  there  decisive,  and  cannot  be  gainsayed : 
nevertheless  his  fellow  thief  shall  not  be  executed,  but  is  a  sale- 
able thief ;  for  no  person  is  to  be  executed  on  the  word  of  another, 
if  nothing  be  found  on  his  person. 


Chap.  vi.     Of  the  claim  of  surety  and  debtor,  this  treats. 

1.  If  a  person  give  surety  to  another,  for  anything,  it  is  right 
for  him  to  release  the  surety,  by  one  of  the  three  means  which 
release  a  surety ;  either  by  paying  for  him ;  or  by  giving  pledge ; 
or  by  denying  surety. 


20.  If  a  person  give  surety  to  another  for  a  debt,  and  after 
giving  the  surety  flee  to  sanctuary,  to  avoid  paying  the  debt ; 
we  say,  that  he  is  not  to  have  sanctuary  against  that ;  and  that 
the  surety  is  to  give  a  pledge  to  the  creditor,  or  otherwise  deny 
the  suretyship. 


25.  If  the  person  take  surety  for  property  from  another,  and 
after  that  the  debtor  be  banished,  either  on  account  of  murder, 
or  for  theft,  or  for  any  other  illegal  acts,  so  that  he  ought  not  to 
be  in  the  country,  and  the  creditor  demand  the  property  from  the 
surety ;  then  the  law  sees  that  it  is  right  for  them  to  divide  the 
loss  equally  between  them ;  that  is,  the  surety  to  pay  one  half 
to  the  creditor;  for  it  is  hard  for  the  surety  to  pay  the  whole, 
and  he  innocent ;  and  hard  for  the  creditor  to  lose  the  whole,  by 
relying  upon  the  surety. 


27.  If  there  be  surety  for  a  debt,  and  before  the  time  of  pay- 
ment the  surety  die,  and  leave  a  son,  the  son  ought  to  be  respon- 
sible for  the  father's  debts.     Some  say,  if  that  son  willeth  to  deny 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  527 

his  suretyship ;  over  the  grave  of  his  father  the  legal  denial  is  to 
be  given :  we  say  it  ought  not  to  be ;  for  the  learned  say,  that 
the  law  of  this  world  can  affect  a  person,  whether  he  be  gone  to 
heaven  or  to  hell,  only  until  he  goes  to  this  earth.  The  cause  is, 
that,  though  there  may  be  law  between  man  and  man  upon  this 
earth,  there  is  no  law  between  devil  and  devil,  and  there  is  no  law 
between  angel  and  angel,  only  the  will  of  God ;  and  therefore,  a 
person  that  leaves  this  earth  cannot  be  affected  by  law ;  but  the 
others  who  remain  are  to  act  together :  and  therefore,  it  is  right 
for  the  son  of  that  surety  who  is  dead  to  stand  legally  for  the 
father,  as  the  father  must  have  stood,  if  living :  and,  if  he  have 
no  son,  the  lord  is  to  act  as  a  son  to  him ;  and,  if  it  be  necessary 
to  compel  him,  he  is  to  be  compelled  as  the  surety  ought  to  be,  if 
living. 

4:  »K  He  He  H<  .       4:  He 

32.  A  female  surety  is  no  surety ;  that  is  to  say,  a  woman  is 
not  to  be  a  surety,  because  women  cannot  deny  a  surety ;  nor  is 
she  to  have  a  raith  of  men  to  deny  it.  The  law,  however,  says 
that  surety  given  by  a  woman  is  a  surety ;  because  whoever  can 
inquire  into  the  right  to  property,  the  law  enacts  it  to  be  legal  for 
that  person  to  warrant  it;  and  since  a  woman  can  inquire  into 
the  right  to  property,  we  say  that  it  is  indispensable  to  take  surety 
for  dilyswydd  (warranty)  from  her  also ;  and  that  the  surety  she 
may  give  is  a  surety :  for  since  a  man  can  deny  her,  she  is  also 
to  have  men  with  her  to  deny  a  surety. 

He  H:  He  He  He  H:  He 

39.  Many  persons  are  not  to  become  surety,  or  to  give  a  surety ; 
and  the  cause  for  that  is,  since  they  are  not  to  deny  a  surety 
they  are  not  to  give  a  surety;  such  are,  a  monk,  an  eremite,  a 
foreigner,  a  scholar  of  a  school,  and  every  person  who  cannot  come 
without  the  permission  of  another  to  attend  the  courts. 


Chap.  viii.     Of  contract. 

1 .  Whoever  shall  make  a  legal  contract,  let  the  two  contractors 
come  together,  and  declare  their  contract  in  the  manner  they  will 
it  to  be  performed;  and  let  them  empower  the  contractmen  to 
enforce  the  contract  in  the  form  they  shall  have  mentioned. 


L 


528  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

5.  If  a  person  make  a  contract  with  another,  without  contract- 
men  being  present,  only  by  mutually  pledging  of  hands,  and  one 
of  them  be  minded  to  deny  it ;  his  own  oath  only  is  required  to 
deny  it. 


8.  No  person  is  to  make  a  contract  for  another,  because  a 
contract  only  continues  during  the  life  of  the  person  who  makes  it. 

9.  The  father  cannot  make  a  contract  for  the  son,  but  by  the 
permission  of  the  son;  neither  can  the  son  make  a  contract  to 
affect  the  father,  and  the  father  yet  living. 

10.  A  contract  breaks  a  custom. 

11.  Although  a  contract  be  made  contrary  to  the  law,  it  must 
be  kept. 

Chap.  xi.     Laws  concerning  landed  property,  and  the  form  of 
pleading  in  respect  thereto. 

1.  Twice  the  law  shall  be  open  for  landed  property,  and  twice 
it  shall  be  closed. 


9.  If  a  plaintiff  willeth  to  claim  land  (at  those  times)  let  him 
appear  before  the  lord,  to  request  a  day  for  hearing  his  claim ; 
and  that  upon  the  land  :  on  that  day,  let  him  state  his  claim ;  but 
he  is  not  to  have  an  answer  on  that  day,  because  it  is  a  sudden 
claim  upon  the  guardians,  and  therefore  the  guardians  are  to 
have  time  for  aid :  it  is  right  for  the  plaintiff  to  oppose  their 
obtaining  it,  if  he  can  do  so ;  unless  the  law  say  that  they  are  to 
have  it.  Then  it  is  right  for  the  judge  to  hear  them,  and  to  ask 
them  where  are  their  aids ;  if  they  say  that  their  aids  are  in  their 
own  cymwd  (territorial  division  of  land)  three  days  are  allowed 
them ;  if  in  the  adjoining  cymwd,  nine  days ;  if  in  the  third  cymwd, 
or  if  flood  and  ebb  be  between  them  and  their  aid,  if  before  mid- 
day the  time  be  fixed,  a  fortnight  from  that  day  is  the  time;  if 
after  mid-day  the  time  be  fixed,  a  fortnight  from  the  morrow 
following:  the  cause. of  that  is,  because  it  is  not  an  entire  day, 
and  that  it  is  not  right  to  compute  part  of  a  day  for  a  whole  day. 

10.  And  at  the  time  appointed  it  is  right  for  every  person  to 
come  upon  that  land,  they  and  their  aid ;  and  then  it  is  right  to 
form  two  parties,  and  sit  legally.  The  legal  form  of  sitting  is  as 
follows :  first,  the  king,  or  his  representative,  with  his  back  to  the 
sun  or  to  the  weather,  lest  the  weather  incommode  his  face ;  and 


Chap.  XXII.]  LAWS  OF  HOWEL  DDA  529 

the  judge  of  the  court,  or  the  judge  of  the  cymwd,  whoever  is  the 
oldest,  is  to  sit  before  him;  and  at  that  person's  left  hand,  the 
other  judge  that  may  be  in  the  field,  or  the  judges ;  and  upon  his 
right  hand,  the  priest  or  priests,  if  there  be  any  in  the  field ;  and 
next  the  lord,  or  his  representative,  the  two  elders,  and  then  his 
gwrdas  (freeholders)  in  succession  on  each  side  of  him :  then  a 
passage  for  the  judges,  opposite  them,  to  pass  and  repass  to  their 
judgment-seat:  then  the  pleader  for  the  plaintiff,  with  his  left 
hand  to  the  passage ;  next  to  him,  in  the  middle,  the  plaintiff,  and 
his  guider  on  the  other  hand;  and  an  apparitor  standing  behind 
the  pleader :  and  the  other  party  on  the  other  side  of  the  passage ; 
nearest  to  the  passage  the  pleader  for  the  defendant,  with  his  right 
hand  to  the  passage ;  and  the  defendant  next  to  him,  in  the  middle, 
and  his  guider  on  the  other  side  of  him ;  and  an  apparitor  behind 
him. 

11.  After  sitting  thus,  let  surety  in  law  be  taken:  that  is, the 
sureties  for  landed  property  are  living  persons,  as  pledges,  two  or 
more  persons  for  each  party ;  and  those  pledges  shall  go  into  the 
custody  of  the  lord. 

12.  Then  stillness  is  to  be  proclaimed  on  the  field,  that  is,  si- 
lence, in  the  field :  whoever  shall  break  that  stillness  shall  pay  a 
camlwrw  (fine)  of  three  kine,  or  nine  score  of  silver :  and  the  word 
spoken,  after  that  proclamation  of  silence,  shall  be  unavailable 
to  the  person  who  may  speak  it,  and  to  the  pleader  for  whose 
assistance  it  was  said. 

13.  In  this  manner  sits  the  king,  with  his  officers  around  him. 

Gwrda.  Gwrda.  Elder. — King. — Elder.  Gwrda.  Gwrda. 
Priest.  Judge  of  the  Cymwd.  Judge  of  the  Court.  Priest 

Guider.  Defendant.  Pleader.  Pleader.  Plaintiff.  Guider. 

Apparitor.  Apparitor. 

14.  After  sitting  legally,  as  we  have  said  abovt,  then  it  is  right 
for  the  judge  to  say  to  both  parties :  "Do  you  now  mutually  speak 
of  law." 

15.  And  then  it  is  right  for  the  judge  to  ask  the  plaintiff: 
"  Who  is  thy  pleader,  and  who  is  thy  guider?  "  And  then  it  is 
right  for  the  plaintiff  to  name  them.  And  then  it  is  right  for  the 
judge  to  ask  the  plaintiff :  "  Wilt  thou  put  to  lose  and  to  gain 
in  their  hands?  "  And  then  it  is  right  for  the  plaintiff  to  say: 
"  I  will."  Then  it  is  right  for  the  judge  to  ask  the  pleader  and 
guider,  whether  they  will  stand  by  him  in  what  he  is  entrusting 
to  them ;  and  then  it  is  right  for  them  to  say :   "  We  will." 


530  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

16.  After  that  it  is  right  for  the  judge  to  ask  the  defendant : 
"  Who  is  thy  pleader,  and  who  is  thy  guider?  "  And  then  it  is 
right  for  him  to  name  them.  Then  it  is  right  for  the  judge  to  ask 
him  whether  he  will  put  to  lose  and  to  gain  in  their  hands ;  and 
then  it  is  right  for  him  to  say :  "I  will."  Then  it  is  right  for  the 
judge  to  say  to  the  plaintiff :  "  State  now  thy  cause :  "  and  then 
it  is  right  for  the  plaintiff  to  begin  pleading. 

17.  Here  is  that  which  it  is  right  for  the  plaintiff  to  say :  stat- 
ing that  he  is  the  true  proprietor  of  the  land  here,  and  of  the  soil : 
and,  if  there  be  who  shall  doubt  his  being  the  true  proprietor  of 
this  land  and  soil,  that  he  has  those  who  can  support  his  title,  by 
kin  and  descent,  sufficient  in  law ;  and  that  he  has  been  unlawfully 
ejected  from  his  property  :  and  if  there  be  who  shall  doubt  it,  that 
he  has  enow  who  know  of  his  having  been  unlawfully  ejected  from 
his  property ;  and  that  he  is  therefore  appealing  to  the  law,  that 
he  is  entitled  to  come  lawfully  back  to  the  place  from  which  he 
has  been  unlawfully  ejected. 

18.  If  there  be  any  one  who  shall  say,  it  is  necessary  that  guar- 
dians (persons  cognizant  of  the  right  claimed)  and  evidences  be 
produced  by  the  same  party ;  we  say  that  may  be  done,  until  the 
reply  of  the  defendant  shall  be  heard. 

19.  "  God  know^s,"  says  the  defendant,  "  I  am  the  true  proprie- 
tor by  kin  and  descent,  and  therefore  I  am  guarding  my  estate  and 
my  property  in  the  best  manner  I  ought  to  guard  it ;  and,  if  there 
be  who  shall  doubt  that,  I  have  enow  to  prove  what  I  say  to  be 
true:  and  thou,  if  thou  hast  been  here,  thou  hast  gone  lawfully 
from  hence;  and  should  there  be  who  shall  doubt  that,  I  have 
enow  who  know  it." 

20.  We  say,  although  the  defendant  shall  have  given  an  answer 
before  he  has  been  questioned  by  the  plaintiff,  the  answer  is 
nugatory  until  he  hear  the  claim ;    and  then  let  him  answer. 

21.  And  after  they  have  finished  their  two  pleadings,  in  the 
manner  we  have  said  before,  let  the  judge  ask  them  whether  that 
which  they  have  said  will  suffice ;  and  let  him  ask  them  whether 
they  will  to  amend  their  pleadings;  and  if  there  be  who  should 
will  it,  let  him  be  permitted ;  and  if  no  one  will  it,  let  the  judge 
take  their  two  pleadings,  and  state  them ;  and  after  he  shall  have 
stated  them,  let  the  judges  go  out,  and  the  priests  or  the  priest 
along  with  them,  and  an  apparitor  with  them,  to  prevent  other 
persons  from  coniing  to  listen  to  them.  If  a  person  come  to  listen 
to  them,  he  is  to  pay  three  kine  as  camlwrw  (fine)  to  the  king; 
and  if  the  king  be  in  the  place,  or  in  the  field,  he  is  to  pay  a  double 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  531 

camlwrw.  Then,  after  they  shall  be  seated  in  their  judgment- 
place,  it  is  right  for  the  priest  to  pray  to  God,  that  God  may  show 
them  the  right,  and  for  them  to  chaunt  their  Pater;  and  after 
the  Pater  it  is  right  for  the  judge  to  state  the  two  pleadings  a  sec- 
ond time. 

22.  And,  if  it  should  be  necessary  for  them  to  interrogate, 
(to  inquire  for  the  guarantee  or  aid)  let  two  of  them  be  deputed  to 
question.  And  if  it  should  be  necessary  for  the  party  interrogated 
to  consult,  let  them  go,  with  the  permission  of  the  judges,  to  their 
consultation;  and  the  number  to  go  are  those  taking  part  in  the 
pleadings,  and  no  more,  with  a  servant  sent  by  the  lord  with  them, 
to  prevent  any  person  from  taking  a  part  in  the  consultation  with 
them ;  and  if  any  person  come  and  should  counsel  them,  let  him 
pay  a  camlwrw  to  the  king,  and  the  counsel  be  nugatory ;  and  the 
distance  they  are  to  go  to  take  counsel  is  to  be  as  far  as  the  judges 
go  to  settle  their  decision.  And,  after  the  consultation  shall  be 
ended,  let  those  two  come  to  the  judges  and  state  to  them  the  con- 
sultation. 

23.  If  no  interrogation  be  necessary,  it  is  right  to  permit  them 
their  arddelw  (a  vouchee  of  defense) ;  and  to  send  two  men  to 
inquire  who  are  their  evidences  and  their  guardians,  and  where 
they  are  :  if  they  say  that  they  are  in  the  field,  let  them  be  brought 
forward  ;  if  they  say  that  they  are  in  the  same  cymwd  (territorial 
division)  with  them,  let  a  period  of  three  days  be  given  them ; 
if  they  say  that  they  are  in  the  next  cymwd,  let  a  period  of  nine 
days  be  granted  them  ;  if  they  say  that  they  are  in  another  country, 
or  that  they  are  separated  from  them  by  flood  and  ebb,  a  period 
of  a  fortnight  from  that  day,  if  it  be  before  mid-day ;  if  after  mid- 
day, a  fortnight  from  the  morrow  following ;  and  that  day  a  day 
to  lose  and  gain :  and  the  pledges  to  be  in  the  king's  prison  until 
that  day;  and  every  one  ordered  to  come- prepared  with  all  their 
requisites  on  that  day  to  the  field :  whether  the  two  parties  be 
assenting  or  not,  is  it  not  a  day  for  legal  decision  ? 

24.  On  the  third  day  after  coming  face  to  face,  it  is  right  for 
every  body  to  sit  in  his  place,  in  the  same  manner  as  he  sat  on  the 
former  day :  and  if  any  of  the  persons  be  dead  who  attended  the 
pleadings  at  their  commencement,  others  are  to  be  put  in  their 
places.  And  after  they  are  so  seated,  it  is  then  right  for  the 
plaintiff  to  tender  his  requisites,  including  his  witnesses,  and  his 
guardians,  and  say,  that  he  is  prepared,  having  his  requisites 
with  him,  as  he  promised.  Then  it  is  right  for  the  defendant  to 
reply ;  and  the  answer  he  is  to  give  is,  that  he  is  prepared,  having 


632  ANCIENT  AND   PRIMITIVE   LAWS  AND  CODES  [Part  III. 

his  requisites  with  him,  as  he  promised.  Then  it  is  right  for  the 
king  to  order  the  pledges  to  be  shown  in  the  field,  for  they  are 
the  sureties.  And  then  after  the  pledges  are  shown,  it  is  right  for 
the  king  to  order  the  apparitor  to  proclaim  silence  in  the  field : 
and  then  it  is  right  for  the  judge  to  announce  the  punishment  for 
breach  of  silence,  that  is,  three  kine  as  camlwrw  (fine),  or  nine 
score  of  silver,  and  the  word  spoken  to  be  nugatory.  And  then  it  is 
right  for  the  plaintiff  to  remind  the  judges,  that  it  is  he  who  first 
promised  his  witnesses  and  his  guardians ;  and  that  he  is  entitled 
to  examine  them  first.  Then  it  is  right  for  the  judges  to  order 
him  to  produce  his  guardians  and  his  witnesses,  to  be  examined ; 
and  then  it  is  right  for  him  to  bring  them  near  him  and  show 
them ;  and  those  he  promised  kre  such  as  he  named  on  the  first 
day.  The  defendant  is  not  then  to  object  to  any  of  them  before 
hearing  their  evidence ;  because  he  knows  not  but  what  they  may 
say  may  be  advantageous  to  him ;  and  whichsoever  of  them  he 
may  object  to,  before  knowing  what  he  may  say;  let  such  one 
stand.  The  defendant,  however,  may  ask,  whether  they  have 
privilege,  so  that  they  ought  to  be  witnesses;  and  if  they  have, 
let  them  come  forward :  and  the  cause  why  he  may  ask  that  is, 
that  an  alltud  (foreigner  or  person  from  another  part  of  the  island) 
cannot  be  an  evidence  concerning  an  hereditary  ''  Cymro " 
(Welshman) ;  and  neither  can  a  woman  concerning  a  man :  and, 
in  addition  to  that,  there  are  many  persons  who  cannot  be  evi- 
dences, nor  guardians,  on  account  of  privilege ;  and  therefore  it 
can  be  no  detriment  to  the  defendant  to  say  that. 

25.  If  the  defendant  promised  witnesses  better  than  those 
promised  by  the  plaintiff ;  either  from  their  privilege  being  higher, 
or  from  their  being  more  numerous;  and  he  willeth  to  support 
that  point,  it  is  right  for  him  to  show  them;  and  after  he  shall 
have  shown  the  witnesses,  it  is  not  right  for  the  plaintiff  then  to 
object  to  them.  And  then  it  is  right  for  the  judge  to  ask  the 
plaintiff :  ''  What  is  the  privilege  of  thy  witnesses  ?  "  Then  it 
is  right  for  the  plaintiff  to  state  the  privilege  of  his  witnesses, 
whether  maers  (bailiffs),  or  canghellors  (officer  to  determine  dis- 
putes among  the  king's  villeins),  whether  monks,  or  teachers,  whether 
priests  or  scholars,  or  privileged  laymen.  After  the  judge  has 
asked  the  plaintiff  the  privilege  of  his  witnesses,  it  is  right  for  the 
judge  to  ask  the  defendant  the  privilege  of  his  witnesses ;  and  then 
it  is  right  for  the  defendant  to  state  the  best  privilege  of  his  wit- 
nesses. Then  it  is  right  for  the  judge  to  recapitulate  the  privilege 
ascribed  by  the  two  parties  to  their  witnesses. 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  533 

26.  Then  it  is  right  for  the  judge  to  ask  the  evidences,  will  they 
abide  by  what  is  required  at  their  hands.  Here  all  the  evidences 
say,  they  will.  Here  all  of  the  two  parties  doubt  the  evidences 
of  each  other,  that  they  will  not  carry  it  to  the  extremity,  though 
they  may  so  speak :  then  it  is  right  for  the  judges  to  put  them  to 
the  relics ;  and  after  they  shall  have  put  them  to  the  relics,  it  is 
right  for  them  to  withdraw,  and  decide  upon  what  they  deem  most 
right  from  what  they  have  heard.  And  if  they  see  that  the  wit- 
nesses of  one  party  are  better  than  those  of  the  other,  let  them 
decide  against  him  who  has  the  worst  witnesses :  if  their  witnesses 
be  equal,  let  it  be  decided  against  the  defendant ;  for  he  promises 
witnesses  which  should  be  better  than  the  other's,  and  he  failed. 
And  then  it  is  right  for  the  judges  to  decide  for  the  plaintiff  to  take 
the  land,  in  the  conditiofi  it  was  in,  when  he  was  unlawfully 
ejected  from  it.  If  the  defendant  had  promised  equal  witnesses, 
and  they  had  been  found  equal,  it  would  have  been  an  equality, 
and  it  should  have  been  shared. 

27.  After  that  it  is  right  for  the  judges  to  prove  the  guardians, 
to  ascertain  whether  all  of  them  affirm  that  the  party  they  uphold 
be  a  proprietor ;  and  if  the  guardians  of  both  parties  affirm  that 
each  is  a  proprietor,  and  they  be  doubted,  it  is  right  to  put  them 
to  the  relics ;  and  let  the  party  whose  guardians  shall  recede  lose 
the  land. 

28.  If  the  guardians  of  both  parties  stand,  it  is  an  equality; 
and  where  there  shall  be  an  equality  it  is  shared. 

29.  Although  he  be  adjudged  to  have  the  land,  the  person 
who  was  in  prior  possession  is  not  to  quit  on  his  account,  if 
he  can  obtain  a  house  with  gable  in  the  same  place,  and  the 
two  lands  equal,  to  prevent  his  being  ejected  from  thence :  and 
he  is  not  to  give  unprivileged  land,  instead  of  land  having 
privilege ;  such  as  that  of  the  office  of  a  canghellor  (officer  who 
holds  pleas  to  determine  disputes),  or  of  a  maer  (bailiff),  or  other 
franchise. 

30.  Then  it  is  right  for  the  judges  to  return  to  their  judgment- 
place;  and  then  it  is  right  for  them  to  take  security  from  the 
two  parties,  to  abide  by  the  judgment ;  and  take  surety  for  their 
fee.  Then  the  judges  are. to  state  the  two  pleadings,  and  after 
that  state  their  judgment ;  and  then  the  king  is  to  liberate  the 
pledges  from  their  prison. 


534  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

BOOK  III 

Preface :    The  law  of  the  functions  of  a  judge. 

Whosoever  may  will  to  undertake  judiciary  functions,  it  is  right 
for  him  to  understand  this  book,  so  that  it  may  be  fitting  for  him 
to  accept  judicial  functions ;  and  when  his  teacher  shall  find  him 
to  be  competent,  let  him  commend  him  to  the  judge  of  the  court ; 
and  the  judge  of  the  court  is  to  prove  him,  and  if  he  find  him  com- 
petent is  to  recommend  him  to  the  lord ;  and  the  lord  is  to  invest 
him  with  judicial  functions ;  and  thenceforth  his  decisions  are  to 
be  of  authority :  and  he  is  to  pay  twenty-four  pence  to  the  judge 
of  the  court  as  his  fee.  If,  from  thenceforth,  he  should  pronounce 
an  unjust  sentence,  he  is  not  entitled  to  his  tongue,  unless  he 
redeem  it  for  its  worth  in  law.  Should  a  party  enter  into  a  mutual 
pledge  with  him,  and  he  be  found  in  the  right,  he  is  to  have  gwyne- 
bwarth  (fine  payable  for  insult)  from  the  person  who  shall  have 
so  mutually  pledged  with  him  ;  and  a  camlwrw  (fine  of  three  kine) 
to  the  lord.  A  judge  is  not  to  receive  a  pledge  after  quitting  his 
judgment  seat,  unless  he  himself  will  it :  and  he  is  not  to  receive 
one  from  a  laic,  unless  promising  a  more  correct  decision  by  an- 
other judge,  than  that  pronounced  by  him. 

Chap.  i.     Of  the  nine  accessories  of  galanas  this  treats. 

1.  The  nine  accessories  of  galanas. 

2.  The  first  is,  to  point  out  the  person  to  be  murdered,  to  the 
person  who  is  to  murder  him :  and  that  person  is  called  a  bloody- 
tongue. 

3.  The  second  is,  to  counsel  the  murderer  to  kill  the  other. 

4.  The  third  is,  to  consent  to  the  murder. 

For  each  of  those  three  accessories,  if  denied,  the  oaths  of  one 
hundred  men  are  to  deny  it :  if  he  confess  it,  let  him  pay  nine 
score  of  silver. 

5.  The  fourth  is,  to  be  a  spy. 

6.  The  fifth  is,  association  with  the  murderer. 

7.  The  sixth  is,  to  go  to  the  trev  (territorial  division  of  land)^ 
wherein  the  person  is  who  is  to  be  killed,  with  the  murderer. 

To  deny  each  of  those  three,  the  oaths  of  two  hundred  men  are 
required :   or  twice  nine  score  of  silver,  if  acknowledged. 

8.  The  seventh  is,  to  be  aiding. 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  535 

9.  The  eighth  is,  to  hold  the  person  to  be  killed,  until  the  mur- 
derer come  to  kill  him. 

10.  The  ninth  is,  to  see  the  person  murdered  in  his  presence^ 
without  rescuing  him. 

For  each  of  those  three,  if  denied,  the  oaths  of  three  hundred 
men  are  required  :  or  thrice  nine  score  of  silver,  if  acknowledged. 

11.  Some  say,  that  the  kindred  are  to  have  that  money,  together 
with  the  denial ;  because  those  accessories  being  the  cause  of 
the  murder  of  their  relation,  they  are  to  have  that  money,  and  to 
deny  blood  and  wound  and  killing  of  their  relation,  they  are  to 
have  the  raith  which  we  have  mentioned  above;  the  law,  how- 
ever, says,  that  no  one  is  to  have  both  the  denial  and  the  money ; 
and  that  they  are  not  to  have  that  denial  and  the  money ;  since 
the  kindred  are  only  to  have  the  saraad  (fine)  and  galanas  of  their 
relation ;  and  that  in  such  instance  there  is  neither  assault,  nor 
battery,  nor  blood,  nor  wound,  nor  loss  of  life ;  and  where  such  do 
not  occur,  there  is  neither  saraad  nor  galanas  (sum  assessed  upon 
the  criminal  and  his  relatives  as  retribution  for  murder) ;  and 
therefore  the  kindred  are  to  have  nothing  from  the  accessories 
aforesaid.  It  is  wrong  to  commit  those  accessories  aforesaid,  and 
therefore  the  lord  is  to  have  a  camlwrw  (fine  of  three  kine)  for 
them,  according  to  the  degree  of  the  accessories;  one  singly, 
another  two-fold,  another  three-fold,  since  no  fighting  took  place 
there ;  and,  if  there  had  been  fighting,  there  would  have  been  a 
dirwy  (fine  of  12  kine)  to  the  lord.  The  amount  of  a  dirwy  is 
three  pounds,  or  twelve  kine :  the  amount  of  a  camlwrw  is  three 
kine,  or  nine  score  of  silver. 

12.  Whoever  is  a  murderer,  the  full  galanas  (the  sum  assessed 
upon  the  criminal)  falls  upon  him.  And  thus  the  galanas  is  to 
be  shared  :  one  third  upon  the  murderer,  and  upon  his  father  and 
mother,  if  they  be  living ;  and  of  that,  two  parts  upon  himself, 
and  the  third  upon  his  father  and  mother ;  and  of  the  third  which 
falls  upon  the  parents,  two  pence  upon  the  father,  and  one  upon 
the  mother. 

If  the  murderer  have  children,  and  they  be  of  age  liable  to  pay, 
he  is  to  pay  as  much  as  two  of  them  ;  two  pence  upon  the  brother 
and  one  on  the  sister.  Of  the  two  parts  that  fall  upon  his  kin- 
dred, the  third  upon  the  kindred  of  the  murderer's  mother,  and  the 
two  parts  upon  the  kindred  of  the  father :  and  so  the  galanas  pro- 
ceeds from  maternity  to  maternity  unto  the  seventh  descent,  or 
the  seventh  maternity :  for  the  children  of  the  first  mother  are 
brothers ;   and  the  children  of  the  grandmother,  are  first  cousins ; 


536  ANCIENT  AND  PRIMITIVE   LAWS  AND   CODES  [Part  III. 

and  the  children  of  the  great-grandmother,  are  second  cousins; 
and  the  children  of  the  mother  in  the  fourth  degree,  are  third 
cousins;  and  the  children  of  the  mother  in  the  fifth  degree,  are 
fourth  cousins;  and  the  children  of  the  mother  in  the  sixth  de- 
gree, are  fifth  cousins;  and  the  children  of  the  mother  in  the 
seventh  degree,  are  sixth  cousins;  and  galanas  goes  no  further 
than  that.  Though  only  two  or  three  of  the  degrees  should  be 
ascertained,  let  the  galanas  be  cast  upon  them ;  and  that  which 
falls  not  upon  them,  is  to  be  shared  upon  the  families  from  whom 
the  father  is  descended,  rating  two  shares  upon  the  stock. 

13.  Upon  the  kindred  after  the  sixth  cousin,  the  spear  penny 
is  to  be  assessed;  and  that  goes  to  assist  the  murderer.  The 
manner  it  is  exacted  is,  the  murderer  is  to  take  a  servant  of  the 
lord,  carrying  with  him  a  relic ;  and  wherever  he  shall  meet  with 
a  person  beyond  the  seventh  degree  of  kindred,  let  such  person 
take  his  oath,  that  he  is  not  descended  from  any  of  the  four  kin- 
dreds from  which  the  other  is  descended ;  and  unless  he  take  that 
oath,  let  him  pay  a  spear  penny ;  and  if  he  take  the  oath,  he  is  to 
be  exempted. 

14.  A  woman  does  not  pay  a  spear  penny,  for  she  has  not  a 
spear,  but  her  distaff  only ;  neither  do  clerks  pay  it :  and  a  woman 
does  not  pay  galanas,  if  she  make  oath  that  she  shall  have  no 
children ;  neither  do  clerks  pay  it :  and  it  is  not  paid  by  a  boy 
under  fourteen  years  of  age. 

15.  The  law  of  galanas. 

Thus  the  galanas  fine  is  to  be  exacted:  the  first  third  to  the 
lord  for  exacting  it ;  and  the  second  third  to  the  father  and  mother 
and  their  children ;  out  of  that,  two  shares  to  the  father,  and  one 
to  the  mother :  and  of  that  which  shall  come  to  the  father  and  the 
mother,  two  pence  to  the  father,  and  one  to  the  mother :  and  of 
what  remains  for  the  children,  if  there  be  children  of  the  mur- 
dered man,  two  shares  to  them.  And  the  two  parts  which  go  to 
the  kindred  are  to  be  divided  into  three  shares ;  and  of  that  one 
third  to  the  kindred  of  the  mother,  and  the  two  parts  to  the  kin- 
dred of  the  father.  And  so  galanas  is  shared,  and  received,  from 
third  to  third :  and  so  the  thirds  are  received,  in  every  one  of  the 
triads,  between  the  lord  and  the  kindred.  The  eldest  son  is  to 
point  out  the  offspring  of  his  father,  and  his  family ;  and  attend 
the  servants  of  the  lord  in  collecting  the  galanas. 

16.  The  period  for  galanas  is  a  fortnight,  after  being  summoned, 
for  each  lordship  wherein  they  live,  to  apportion  the  payment; 
and  twice  that  time  for  exacting  the  payment,  and  to  assemble 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  537 

them  to  pay  it.  And  every  lord  is  to  have  the  exacting  third  in 
his  own  lordship.  At  three  periods,  and  in  three  thirds,  the  gala- 
nas  is  to  be  paid ;  two  periods  for  the  kindred  of  the  father,  and 
one  for  the  kindred  of  the  mother ;  because  two-thirds  fall  upon 
the  kindred  of  the  father,  and  therefore  they  are  to  have  two 
periods.  At  the  first  period  for  the  kindred  of  the  father  to  pay 
one  of  their  thirds,  they  are  to  have  the  oaths  of  one  hundred  of 
the  best  men  of  the  other  kindred,  that  their  relation  is  forgiven ; 
and  at  the  second  period,  on  their  paying  their  second  third,  they 
are  also  to  have  the  oaths  of  another  hundred  men  of  the  other 
kindred,  that  their  relation  is  forgiven ;  and  those  of  the  best  men 
of  the  tribe;  and  at  the  third  period,  the  kindred  of  the  mother 
are  to  pay  their  third ;  and  then  they  are  to  have  the  oaths  of  a 
hundred  men  of  the  other  kindred,  that  their  relation  is  forgiven : 
and  everlasting  concord  is  to  be  established  on  that  day,  and 
perpetual  amnesty  between  them. 

17.  The  oaths  of  three  hundred  men  of  a  kindred  are  required 
to  deny  murder,  blood,  and  wound,  and  the  killing  of  a  person; 
and  therefore  it  is  right  to  give  the  oaths  of  three  hundred  men 
to  release  him ;  and  for  amnesty  between  the  kindreds,  the  raith 
we  have  mentioned  above. 

•18.  To  deny  the  killing  of  a  person  with  savage  violence,  the 
oaths  of  six  hundred  men  are  required ;  for  the  galanas  and  its 
penance  Heing  double,  so  the  denial  also  is  to  be  double. 

19.  When  a  person  is  killed,  saraad  is  done  to  him  in  the  first 
instance,  and  that  saraad  does  not  augment;  and,  therefore,  it 
is  right  to  pay  that  saraad  before  the  galanas;  and  if  the  man 
have  a  wife,  let  the  third  of  the  saraad  be  given  to  her,  and  the 
two  parts  be  shared  among  the  brothers,  the  cousins,  and  the 
second  cousins ;  and  if  his  father  be  alive,  he  is  to  have  as  much 
as  two  of  the  brothers ;  and  if  his  mother  be  alive,  she  is  to  have 
as  much  as  two  sisters :  and  that  is  the  best  form ;  for  they  are  the 
several  persons  who  are  to  pay  saraad  with  him,  if  he  were  to  do 
saraad  to  another.  Others  say,  that  after  one  third  is  given 
to  the  wife,  the  other  two  parts  are  to  be  mixed  with  the  galanas, 
and  shared  among  the  kindred. 

20.  The  lord  is  to  have  the  exacting  third  of  the  saraads,  as  of. 
the  galanases. 

21.  Neither  clerks  nor  women  are  to  have  a  share  of  the  gala- 
nanas,  since  they  are  not  avengers :  however,  they  are  to  pay  for 
their  children ;   or  make  an  oath  that  they  shall  never  have  any. 

22.  Some  of  the  judges  suffer  the  mother,  father,  brothers, 


538  ANCIENT  AND  PRIMITIVE   LAWS  AND   CODES  [Part  III. 

sisters,  and  their  offspring,  to  pay,  with  the  murderer;  for  those 
persons  would  obtain  one  third  of  his  galanas,  if  he  were  killed; 
so  they  likewise  are  to  pay  one  third  of  galanas  with  him ;  and  of 
that  the  murderer  is  to  pay  twice  as  much  as  the  father ;  and  the 
father  is  to  pay  twice  as  much  as  the  son ;  and  the  mother  is  to 
pay  as  much  as  her  son ;  and  the  brother  pays  as  much  as  his  two 
sisters;  and  of  the  murderer's  proportion,  the  murderer  himself 
is  to  pay  as  much  as  two  of  his  sons.  And  that  is  the  law  of 
Howel. 

23.  A  childless  woman  pays  no  galanas;  and  neither  does  she 
pay,  who  has  ceased  to  bear  children. 

24.  The  galanas  of  the  king  of  Aberfraw  (princely  seat  of  Vene- 
dotia)  is  his  saraad  threefold. 

25.  The  galanas  of  the  king's  wife,  his  son,  his  edling  (next  in 
line),  his  nephew,  and  his  chief  of  the  household,  is  one  third 
of  the  king's  galanas :  and  their  saraad  is  one  third  of  the  king's 
saraad. 

26.  The  galanas  of  the  king's  daughter  is  half  the  galanas  of 
her  brother :  and  her  saraad  is  in  the  same  proportion,  before 
she  marries. 

27.  The  galanas  of  a  steward,  a  chief  of  a  kindred,  a  canghellor 
(an  officer  who  determines  disputes),  and  a  chief  huntsman,  is 
nine  score  and  nine  kine,  once  augmented :  and  their  saraad  is 
nine  kine,  and  nine  score  of  silver  once  augmented.        0 

28.  The  galanas  of  each  of  the  servants  of  the  court  is  six  score 
and  six  kine,  once  augmented :  and  their  saraad  is  six  kine,  and 
six  score  of  silver. 

29.  The  galanas  of  a  maer,  and  an  uchelwr  (high  man),  is  as 
much  as  the  galanas  of  two  of  the  servants :  and  their  saraad  in 
the  same  proportion. 

30.  The  galanas  of  a  man  with  a  family  is  four  score  and  four 
kine  augmented :  his  saraad  is  four  kine,  and  four  score  of  silver 
augmented. 

31.  The  galanas  of  an  innate  boneddig  (free  Welshman),  and  of 
the  king's  alltud  (person  from  foreign  parts  or  another  part  of  the 
island),  is  three  score  and  three  kine :  their  saraad  is  three  kine, 
and  three  score  of  silver. 

32.  The  galanas  of  the  alltud  of  an  uchelwr,  is  half  the  galanas 
of  the  king's  alltud :   and  his  saraad  in  the  same  proportion. 

33.  The  worth  of  a  bondman,  if  of  this  island,  is  one  pound ; 
if  from  beyond  sea,  one  pound  and  six  score  pence.  The  saraad 
of  a  bondsman  is  twelve  pence :  six  for  a  coat  for  him,  three  for 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  539 

trousers,  one  for  buskins,  one  for  a  hook,  and  one  for  a  rope ;  and 
if  he  be  a  woodman,  let  the  hook  penny  be  for  an  axe. 

34.  If  the  bondsman  do  saraad  to  a  free  man,  let  his  right  hand 
be  cut  off ;  unless  the  lord  redeem  it :  the  hand  of  a  bondman  is 
of  the  same  worth  as  the  king's  hand. 

Chap.  ii.     Of  the  nine  accessories  of  theft  this  treats. 

1.  Of  the  nine  accessories  of  theft. 

2.  The  first  of  them  is,  to  point  out  the  thing  to  be  stolen. 

3.  The  second  is,  to  consent  to  the  theft. 

4.  The  third  is,  to  give  provision  to  the  thief. 

5.  The  fourth  is,  to  go  in  his  society  and  carry  the  provision. 

6.  The  fifth  is,  to  accompany  him,  and  to  break  into  the  place 
whence  the  property  is  to  be  stolen.    , 

7.  The  sixth  is,  to  be  an  adviser  to  the  thief,  and  a  receiver  of 
the  stolen  property. 

8.  The  seventh  is,  to  travel,  by  day  or  night,  along  with  the 
thief. 

9.  The  eighth  is,  to  receive  a  share  of  the  stolen  property. 

10.  The  ninth  is,  to  receive  worth  from  the  thief  for  secrecy. 

11.  For  each  of  those  accessories,  a  dirwy  is  to  be  imposed,  if 
acknowledged,  having  been  previously  concealed :  the  amount 
of  the  dirwy  is  twelve  kine,  or  three  pounds,  to  be  paid  to  the 
lord :  they  are  not  to  pay  anything  to  the  owner  of  the  property, 
as  they  are  not  murderers.  If  they  cannot  pay  the  dirwy,  the 
lord  may  banish  them  on  account  of  it :  he  may,  however,  receive 
three  pence  in  lieu  of  the  three  pounds,  if  he  will,  without  infring- 
ing the  law.  If  they  be  able  to  obtain  the  payment,  they  are 
not  to  be  exiled,  nor  their  property  confiscated;  nor  to  be 
executed. 

12.  If  any  of  the  accessories,  which  we  have  mentioned  above, 
be  denied,  their  denial  is  the  same  as  the  denial  of  a  murderer. 
Others  say,  in  respect  to  that  raith,  that  five  men,  without  alltuds, 
without  nod-men,  shall  deny  it :  and  that  is  correctly  the  law  of 
Howel. 

13.  Thus  theft  is  to  be  denied  in  the  law  of  Howel :  the  oaths 
of  twelve  men,  for  a  horse,  or  three  score  of  silver ;  for  that  is  the 
lowest  value  of  a  horse,  in  law :  the  half  nod-men,  and  the  other 
half  not  nod-men ;  and  two  parts  of  them  are  to  be  of  kin  to  the 
father,  and  one  third  kin  to  the  mother,  and  their  relationship  so 
near  to  the  accused,  as  to  pay  or  to  receive  his  galanas. 

14.  To  deny  a  horse-load,  or  an  ox;   for  a  horse  may  carry  an 


540  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

ox;   the  oaths  of  six  men,  and  himself  the  seventh,  and  the  half 
to  be  nod-men  (men  without  note  or  mark). 

15.  To  deny  a  swine,  or  a  sheep,  or  a  back-burthen ;  the  oaths 
of  five  men,  the  half  nod-men,  the  other  half  not  nod-men,  and 
himself  the  fifth ;  and  then  the  raith  is  to  be  equally  taken  from 
the  two  kindreds ;  since  there  cannot  be  a  third  of  four  persons. 

16.  Those  raiths  are  not  required  except  to  rebut  a  legal  prose- 
cution :  a  legal  prosecution  is  the  oath  of  the  owner,  that  the  per- 
son in  question  really  stole  the  goods ;  for  there  cannot  be  a  prose- 
cution, except  by  the  owner. 

17.  Though  the  owner  of  goods  should  say,  orally,  that  a  person 
has  stolen  them ;  yet  if  he  bring  it  not  to  the  test,  we  decide  that 
the  oath  of  the  defendant  alone  is  required  to  deny  it. 

18.  Though  the  person  who  is  not  the  owner  of  the  relics  prose- 
cute another  for  theft;  the  oath  of  the  defendant  alone  is  suffi- 
cient to  clear  him :  because  no  one  but  the  owner  is  to  prosecute 
for  theft. 

19.  At  present  it  is  customary  to  require  for  every  theft,  whether 
great  or  small,  the  oaths  of  twelve  men;  and  the  half  of  them 
nod-men. 

20.  Though  the  raith  of  a  person,  concerned  as  an  accessory, 
fail ;  he  shall  only  be  liable  to  dirwy  (fine) ;  unless  it  be  minded 
to  prosecute  him  for  perjury. 

21.  Of  a  raith. 

Though  the  raith  for  a  criminal  fail,  whatever  the  amount  of 
the  theft  he  shall  be  accused  of,  he  is  not  to  be  executed  if  he  pay 
seven  pounds ;  and,  if  he  cannot  pay,  he  is  not  to  be  executed,  only 
exiled:  for  no  one  is  to  be  put  to  death,  upon  whom  nothing  is 
found.  Others  say,  that  he  is  to  lose  his  life,  unless  he  obtain  his 
worth. 

22.  Whoever  is  exiled  by  the  sentence  of  the  law,  is  to  set  out 
on  his  departure  the  following  morning ;  and,  from  that  time  for- 
ward, a  day  is  allowed  for  passing  through  each  cantrev  (largest 
fixed  division  of  a  district)  belonging  to  the  lord  who  shall  exile 
him :  and  that  is  the  delay  for  an  exile. 

23.  Whoever  shall  catch  a  thief,  with  stolen  goods  in  his  pos- 
session, and  let  him  go,  either  for  relationship  or  for  worth;  if 
he  confess,  let  him  pay  seven  pounds;  for,  though  the  thief  for- 
feit his  life,  he  does  not :  if  he  be  unable  to  pay  seven  pounds,  let 
him  be  banished  as  a  thief. 

24.  Whoever  is  exiled  by  the  sentence  of  the  law,  and  is  found 
in  the  country,  beyond  the  time  assigned  for  remaining  in  the 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  541 

country ;  let  him  lose  his  life,  unless  he  find  some  one  to  buy  him ; 
for  he  is  not  to  return  to  the  country  during  the  life  of  the  lord 
who  exiled  him,  unless  by  being  pardoned. 

25.  The  law  concerning  theft. 

Any  person  soever,  to  whose  house  the  track  of  a  thief  leads, 
and  he  shall  be  unable  legally  to  trace  it  further ;  let  his  property 
be  confiscated ;   and,  if  he  have  no  property,  let  him  be  exiled. 

26.  Any  person  soever,  in  whose  house,  or  in  the  purlieus  of  the 
house,  wherein  he  is  resident,  stolen  goods  shall  be  found ;  although 
he  may  not  be  personally  concerned  in  the  theft,  he  ought,  never- 
theless, to  prevent  his  house  being  a  receptacle  for  the  theft : 
and  therefore  we  judge  that  house,  with  all  in  it,  a  deposit  excepted, 
to  be  a  halog-dy  (a  polluted  house) ;  for  the  owner  of  the  deposit 
is  not  to  guard  another  house  from  receiving  theft,  therefore  he 
is  not  to  lose  his  property. 

27.  There  is  in  the  law  but  one  case  wherein  harrying  confisca- 
tion occurs ;   and  that  case  is,  for  homicide. 

28.  Whoever  may  will  to  make  full  information,  let  him  go  to 
the  lord  and  say,  that  a  person,  whom  he  dare  not  mention,  either 
on  account  of  his  rank,  or  of  his  property,  has  committed  a  theft : 
Then  it  is  right  for  the  lord  to  summon  the  priest  to  him,  and  state 
to  him  what  has  been  imparted  to  him  ;  and  send  the  priest  along 
with  the  informant  to  the  church  door,  and  let  him  charge  him 
to  beware  of  being  guilty  of  perjury.  Then,  if  he  willeth  to  swear, 
let  him  swear  first  at  the  church  door ;  secondly,  in  the  chancel ; 
and  thirdly,  at  the  altar.  And  from  thence,  let  the  priest  return 
to  the  lord,  and  say,  that  he  has  had  the  whole ;  and  the  lord  is 
to  swear  to  having  had  full  information,  when  he  shall  examine 
the  person,  in  the  courts ;  and  against  this  nothing  can  be  done. 
Still,  he  is  not  to  lose  his  life  for  that,  but  is  to  be  a  saleable  thief ; 
and,  unless  he  can  obtain  his  worth,  let  him  be  exiled  as  a  thief. 
Other  of  the  laws  allow  him  a  denial  against  the  prosecution  by 
the  lord,  in  the  same  manner  as  in  a  prosecution  by  the  owner: 
and  that  form  is  mostly  preferred  by  the  men  of  Gwynedd. 

29.  If  a  person  find  the  flesh  of  an  animal  that  is  not  his  own, 
whether  killed  by  dogs,  or  hidden,  and  take  it  away  without  per- 
mission, a  dirwy  (fine)  is  payable  for  it,  whether  obtained  by  gift, 
or  endowment,  or  purchase,  even  unto  the  hundredth  hand :  and 
therefore  it  is  called  the  piece  of  a  hundred  perplexities :  and  be- 
yond the  hundredth  hand  it  is  not  cognizable. 

30.  Whoever  may  will  to  detain  stolen  property  in  the  hand  of 
another,  let  him  go  to  the  thing  he  would  detain,  and  ask :  "  Who 


542  ANCIENT  AND   PRIMITIVE   LAWS  AND  CODES  [Part  III. 

owns  this  ?  "  If  there  be  no  one  who  shall  own  it,  let  him  have 
permission  to  take  the  property ;  and  after  he  shall  have  obtained 
permission,  let  him  go  to  the  judge ;  and  according  as  the  judge 
shall  direct,  let  him  take  it,  and  swear  to  it. 

31.  If  whilst  detaining  the  property,  an  owner  come  and  oppose 
him ;  let  him  ask :  ''  Who  owns  this  ?  "  Then  it  is  right  for  the 
owner  to  say,  that  it  is  owned  by  him.  And  then  it  is  right  for 
the  plaintiff  to  say :  "  It  is  wrong  for  thee  to  own  what  is  mine." 
And  then  it  is  right  for  the  defendant  to  reply :  "  It  is  altogether 
denied ;  for,  nothing  of  thine  have  I :  and,  since  I  have  not ;  by  what 
means  did  thy  loss  happen,  and  at  what  time  didst  thou  lose  it  ?  " 

32.  It  is  right  to  ask  and  know  this,  because  there  are  six  ways 
in  which  a  person  may  lose  his  property :  and  in  three  of  those 
cases  he  can  swear  to  it ;  and  in  the  other  three  he  cannot.  The 
three  cases  wherein  he  cannot  swear  are,  a  deposit  and  loan,  and 
hire,  and  favour;  for  it  is  not  right  to  enquire  where  these  are, 
or  to  enquire  to  whom  they  are  gone.  The  other  three,  which  it 
[is]  right  to  swear  to  are,  first,  theft;  the  second,  loss  by  negli- 
gence ;  and  the  third  is,  surreption :  they  are  to  be  sworn  to, 
because  they  were  not  received  by  another  hand  from  his  hand ; 
therefore  he  can  swear  to  the  property,  wherever  he  may  see  it. 

33.  Whosoever  may  will  to  swear  to  the  property,  is  to  do  it  in 
this  manner.  If  he  swear  to  what  is  inanimate  let  him  swear  to 
it,  with  his  left  hand  upon  any  part  thereof.  If  it  be  a  living  ani- 
mal, let  him  swear  to  it,  with  his  left  hand  upon  the  right  ear  of 
the  animal,  and  his  right  hand  upon  the  relics :  and  let  the  defen- 
dant place  his  right  hand  upon  the  left  ear  of  the  animal ;  and  so 
let  him  swear  to  the  plaintiff,  that  there  was  no  owner  to  it,  who 
ought  either  to  purchase  or  to  sell  it,  excepting  himself,  by  right ; 
and,  moreover,  that  he  did  not  part  with  it,  either  by  gift,  or  loan, 
or  deposit,  or  sell  it ;  but  that,  either  by  theft,  or  surreption,  or 
straying  he  lost  it;  naming  the  day  or  night  in  the  week,  and 
naming  the  week  in  the  month,  and  naming  the  month  in  the  sea- 
son, and  naming  the  season  in  the  year,  when  it  was  missing. 

34.  There  are  three  arddelws  (vouchees  of  defenses)  to  an  ani- 
mal :  birth  and  rearing ;  possession  before  loss ;  and  arwaesav 
(person,  or  authority,  a  defendant  avouches  to  be  the  guarantor 
of  the  right  to  property  with  which  he  is  charged  to  be  unlawfully 
possessed) .  To  inanimate  things  there  are  only  two  :  possession 
before  loss;   and  arwaesav. 

35.  If  a  person  seek  his  arddelw  on  birth  and  rearing,  let  him 
proceed  thus :   let  him  have  guardians  to  speak  to  the  mother's 


Chap.  XXII.]  LAWS  OF  HOWEL   DDA  543 

being  his  property,  and  that  the  animal  was  born  and  bred  in  his 
possession,  and  was  not  out  of  his  possession  since  its  birth  until 
that  day.  The  guardians  to  be  produced  by  him  are,  a  neighbour 
above  his  hand,  and  another  below  his  hand ;  that  is,  a  man  above 
his  rank,  and  another  below  his  rank ;  and,  if  he  can  obtain  these, 
it  will  be  sufficient  for  him. 

36.  If  he  choose  his  arddelw  on  possession  before  loss,  let  him 
swear  to  it,  according  to  the  form  we  have  previously  mentioned. 
After  he  has  sworn  to  it,  let  him  say  that  the  animal  was  in  his 
possession,  either  a  week,  or  a  month,  or  two,  or  a  season,  before 
the  other  had  it ;  and  that  he  has  guardians  lawfully  to  prove  its 
being  in  his  possession,  whether  a  week,  or  a  fortnight,  or  a  month, 
or  a  season,  before  he  lost  it :  if  he  can  do  this,  it  is  sufficient  for 
him. 

37.  If  his  arddelw  is  by  arwaesav,  let  him  say :  "  Who  will 
arddelw  or  arwaesav  this  ?  "  And  if  one  be  in  the  field,  let  his 
arwaesav  take  upon  himself  the  theft;  and  let  the  other  be  free. 
If  the  arwaesav  take  it,  let  the  claimant  swear  to  it  in  his  hand ; 
and  he  is,  if  so  minded,  to  seek  another  arwaesav,  or  another  lawful 
arddelw ;  or  let  him  fail  in  the  cause. 

38.  It  is  not  right  that  there  should  be  a  raith,  after  detention 
and  swearing,  only  arwaesav,  or  custody  before  loss,  or  birth  and 
rearing. 

39.  If  a  theft  be  found  upon  a  person,  and  he  assert  that  he  is 
innocent  of  the  theft,  but  that  it  was  left  with  him  against  his 
will  by  another  person,  and  so  he  had  it  in  his  hand,  and  the  per- 
son say  that  it  was  stolen  property ;  it  is  then  right  to  adjudge 
him  to  produce  a  raith  on  that  account :  and  this  is  the  single 
case  where  a  raith  is  adjudged  after  detention  and  swearing. 
And  thus  the  theft  may  go  from  hand  to  hand,  while  there  shall 
be  found  in  the  field  one  to  own  it. 

40.  If  he  find  in  the  field  one  who  will  own  it,  with  an  arddelw 
of  an  arwaesav  in  another  place,  let  time  be  given  him  to  obtain 
his  arwaesav ;  that  is,  three  days,  if  in  the  same  cymwd ;  if  in  the 
next  cymwd,  nine  days ;  a  fortnight,  if  in  another  country ;  and 
so  it  proceeds  to  the  third  hand ;  and  after  the  third  hand,  the  law 
admits  of  no  delay  :  and  if  the  third  hand  find  in  the  field  a  person 
that  will  own  it,  it  is  right  to  allow  it ;  yet  there  is  to  be  no  delay, 
but  immediate  law. 

41.  Whosoever  shall  fix  his  arwaesav  upon  another,  and  his 
arwaesav  fail  him;  let  him  be  himself  an  acknowleged  thief; 
and  that  according  to  the"  amount  of  the  theft  found  upon  him. 


544  ANCIENT  AND  PRIMITIVE  LAWS  AND  CODES  [Part  III. 

42.  By  the  law  of  Howel,  for  theft  to  the  value  of  four  pence, 
the  thief  is  saleable;  and  for  a  greater  amount  forfeits  his  life. 
Others  say,  that  for  every  four-footed  animal  that  is  stolen, 
either  a  lamb,  a  kid,  or  a  pig,  the  thief  forfeits  his  life :  neverthe- 
less, it  is  safest  to  restrict  it  to  four  pence. 

43.  Seven  pounds  is  the  worth  of  a  thief  who  is  to  be  sold. 

44.*  He  who  forfeits  life  is  not  to  lose  any  of  his  property ;  be- 
cause, both  reparation  and  punishment  are  not  to  be  exacted, 
only  payment  of  the  property  to  the  loser ;  and  he  is  to  pay  the 
loser,  because  he  ought  not  to  leave  a  claim  upon  him  unsatisfied. 

45.  In  the  law  of  Howel,  thfere  was  a  payment  for  theft,  and  a 
second  payment;  and  then  Bleddyn,  son  of  Cyncyn,  altered  this 
rule,  because  it  suffices  to  pay  a  person  for  his  loss  according  to 
his  oath.  The  property  of  the  criminal  is  to  go  in  the  way  he  may 
bequeath  it,  unless  he  have  children;  but,  if  he  have  children, 
then  he  is  to  bequeath  nothing,  except  his  debts,  and  daered 
(revenue)  to  the  church. 

46.  Concerning  ebediw  (a  relief  payable  to  the  superior  lord). 
The  lord  is  not  to  have  the  ebediw  of  a  person  he  may  himself 

execute :   if  executed  in  another  country,  the  lord  is  to  have  the ' 
ebediw. 

47.  There  is  to  be  no  galanas  (sum  assessed  upon  the  criminal 
and  his  relatives)  for  a  thief ;  neither  is  there  to  be  feud  between 
two  kindreds,  on  account  of  his  execution. 

48.  The  law  says,  in  respect  to  "  gwynwyr  "  (wandering  col- 
lectors of  alms)  from  another  country  who  go  thirds  with  their 
own  lord ;  that,  if  caught,  they  are  saleable  thieves ;  and  if 
killed,  that  galanas  is  due  for  them. 

49.  Traitors  to  a  lord,,  ferocious  men,  and  every  person  who 
forfeits  his  life  by  the  sentence  of  the  law ;  no  galanas  is  due  for 
them. 

50.  Ferocious  men,  if  they  deny  their  savage  violence,  are  to 
make  a  denial  doubly. 

51.  Savage  violence  is,  rendering  property  useless  to  either 
the  perpetrator,  or  the  owner. 

52.  Theft  is,  everything  that  is  denied  of  what  shall  be  taken. 

53.  Surreption  is,  everything  taken  in  absence,  and  not  denied. 

54.  Violence  is,  everything  taken  in  presence,  and  against 
consent. 

55.  Error  is,  everything  that  is  taken  instead  of  another. 
Neither  a  dirwy  nor  camlwrw,  is  payable  for  error,  nor  any  thing, 
except  compensation  to  the  person  for  his  property. 


Chap.  XXII.]  LAWS  OF  HOWEL  DDA  545 

56.  A  bondman  is  not  to  be  put  to  death,  if  his  lord  will  redeem 
him;  and,  unless  any  thing  be  found  in  his  hand,  his  lord  may 
exculpate  him ;  and  for  that  cause  it  is  customary  to  allow  lords 
to  exculpate  their  alltud  servants. 

57.  Alltuds  from  beyond  sea,  or  from  another  country,  and 
speaking  a  different  language,  are  not  to  be  put  to  death,  either 
for  victuals  or  any  other  thing  during  three  nights  and  three  days ; 
but  they  are  to  indemnify  the  owner  for  his  property. 

58.  For  a  dog,  or  for  a  bird,  or  for  any  thing  of  that  kind,  there 
is  neither  dirwy,  nor  forfeiture  of  life ;  but  camlwrw  to  the  lord, 
and  amends  to  the  owner  of  the  property. 

Chap.  iii.     Of  the  nine  accessories  of  fire  this  treats. 

1.  Of  the  nine  accessories  of  fire. 

2.  The  first  is,  giving  counsel  to  burn  the  house. 

3.  The  second  is,  consenting  to  burn  it. 

4.  The  third  is,  going  for  the  purpose  of  burning  it. 

5.  The  fourth  is,  carrying  the  fuel. 

6.  The  fifth  is,  striking  fire. 

7.  The  sixth  is,  procuring  tinder. 

8.  The  seventh  is,  fanning  the  fire  until  it  shall  kindle. 

9.  The  eighth  is,  giving  the  fire  to  the  person  who  shall  burn 
with  it. 

10.  The  ninth  is,  seeing  it  burning. 

11.  Whoever  may  will  to  deny  any  one  of  these,  let  him  give 
the  oaths  of  fifty  men,  to  deny  it;  and  if  it  shall  be  proceeded 
with  as  theft,  the  one  half  nod-men,  and  the  rest  not  nod-men; 
or  let  him  pay  for  the  whole. 

12.  Others  say  that  no  greater  raith  is  required  for  theft,  than 
twelve  men ;  and  that  twelve  man  deny  theft,  the  one  half  nod- 
meft,  and  the  other  not  nod-men ;  and  that  burning  for  theft  is 
thus  denied,  because  the  theft  is  a  greater  crime  than  the  burning. 

13.  Whoever  shall  burn  a  house,  and  that  house  burn  another ; 
let  him  pay  for  the  house  he  set  fire  to :  and  thus  let  payment  be 
made,  from  house  to  house,  as  far  as  the  fire  shall  extend. 

14.  Whoever  shall  give  fire  to  another  to  burn  therewith,  and 
he  confess  it ;  let  him  pay  one  third  of  the  damage. 

15.  Whoever  shall  kindle  a  fire  in  a  house  that  is  not  his  own,  is 
to  be  answerable  for  any  damage  that  may  occur,  to  the  end  of 
three  nights  and  three  days,  from  his  act. 

16.  Whoever  shall  kindle  a  fire  in  a  kiln,  though  it  may  be  burned 
by  another  person,  and  shall  not  take  security  from  the  person 


546  ANCIENT  AND   PRIMITIVE   LAWS  AND  CODES  [Part  III. 

that  makes  use  of  it  after  him ;  let  him  pay  one  third  of  the  damage 
occasioned  by  that  fire. 

17.  Whoever  shall  take  fire  surreptitiously  from  a  house;  let 
him  pay  for  his  act,  and  his  surreption. 

18.  Whoever  shall  ask  for  fire  from  a  house,  and  it  be  given  to 
him ;  he  must  pay  for  the  damage  it  may  do. 

19.  Whoever  shall  ask  to  borrow  fire ;  let  it  come  to  him  with- 
out claim  against  the  lender. 

20.  Three  fires  for  which  no  indemnity  is  to  be  made ;  burning  of 
heath,  in  March ;  the  fire  of  a  smithy,  in  a  hamlet,  that  is  seven 
fathoms  distant  from  the  nearest  houses,  and  which  is  covered  with 
shingles,  or  tiles,  or  sods;  and  the  fire  of  a  bath,  in  a  hamlet, 
that  shall  be  seven  fathoms  from  the  other  houses. 

21.  Whoever  shall  take  a  thing  under  his  care  as  a  deposit,  or 
promise  to  keep  it  secure;  let  him  pay  for  it,  although  burned, 
as  before. 

22.  If  a  house  in  a  trev  take  fire,  through  carelessness,  let  the 
owner  pay  for  the  two  nearest  houses  that  shall  take  fire;  and 
thence  onward,  let  them  pay,  from  next  to  next,  as  they  are 
bound  to  do. 

23.  Galanas  does  not  follow  fire,  but  the  act  of  the  hand  itself 
that  shall  cause  the  fire. 

24.  Whatsoever  person  shall  burn  heath  at  any  other  time  than 
in  the  month  of  March,  is  to  pay  for  the  damage. 

25.  Weaving- women  who  shall  take  webs,  or  other  balls  under 
their  care,  if  they  should  be  burnt,  they  are  to  pay  for  them; 
because  they  are  to  keep  them  against  every  loss. 

26.  No  injury  caused  by  fire  belonging  to  one  person  to  the  body 
of  another  person  is  to  be  compensated ;  unless  accompanied  by 
the  act  of  that  person. 

27.  If  swine  enter  the  house  and  scatter  the  fire  about,  so  as 
to  burn  the  house,  and  the  swine  escape;  let  the  owner  of  the 
swine  pay  for  their  act.  If  the  swine  be  burned,  it  is  an  equa- 
tion between  them ;  as  being  two  irrational  things :  and,  there- 
fore, where  there  is  an  equation,  by  law,  there  is  to  be  nothing 
redressed,  but  one  is  to  be  set  against  another. 

28.  Let  no  one  take  away  fire  without  leave ;  and,  if  he  should 
do  so,  let  him  pay  a  camlwrw,  though  he  do  no  damage  with  it. 

29.  Let  no  one  give  fire,  without  knowing  what  is  to  be  done 
with  it;  and,  if  he  should  do  so,  let  him  pay  one  third  of  any 
damage. 

30.  If  a  person,  in  carrying  fire  from  the  house  of  another. 


Chap.  XXII.]  LAWS   OF  HOWEL  DDA  547 

should  occasion  sparks  to  fly  about;    let  him  pay  for  his  act; 
unless  he  can  impute  part  of  it  to  the  fire. 

31.  If  a  person  should  go  to  dry  corn  upon  the  kiln  of  another 
person;  he  must  answer  for  any  damage  that  may  arise,  until 
the  end  of  three  nights  and  three  days. 

32.  No  person  is  to  forfeit  life  for  violence,  because  it  is  saraad 
to  the  person  injured ;  for  his  property  is  taken  before  his  face ; 
and  according  to  his  privilege  the  saraad  is  to  be  compensated, 
and  his  property  restored;  and  a  dirwy  (fine  of  12  kine)  to  the 
lord. 


Chap,  xxiii.     Now  of  the  members  of  the  human  body. 

1.  Of  the  worth  of  the  nine  coordinate  members  this  is. 

For  each  of  the  feet,  six  kine,  and  six  score  of  silver;  for  each 
of  the  hands,  six  kine,  and  six  score  of  silver ;  for  each  of  the  eyes, 
six  kine,  and  six  score  of  silver ;  for  each  of  the  lips,  six  kine,  and 
six  score  of  silver;  for  each  separately,  six  kine,  and  six  score  of 
silver;  and  for  the  nose  itself,  six  kine,  and  six  score  of  silver, 
separately. 

2.  The  worth  of  the  ear,  if  it  be  cut  off,  two  kine,  and  two  score 
of  silver,  separately.  If  injured,  so  as  to  cause  deafness,  six  kine, 
and  six  score  of  silver. 


4.  The  worth  of  the  tongue  itself  is  equal  to  the  worth  of  all 
the  other  members,  because  it  defends  them. 

5.  The  worth  of  one  of  the  toes,  a  cow,  and  one  score  of  silver. 

6.  The  worth  of  the  great  toe,  two  kine,  and  two  score  of  silver. 

7.  The  worth  of  a  finger,  a  cow,  and  one  score  of  silver. 

8.  The  worth  of  the  thumb,  two  kine,  and  two  score  of  silver. 

9.  The  worth  of  its  nail,  thirty  pence. 

10.  The  worth  of  the  upper  joint  of  the  finger,  twenty-six  pence 
and  a  halfpenny  and  a  third  of  a  halfpenny. 

11.  The  worth  of  the  middle  joint,  thirty-three  pence  and  two 
parts  of  a  halfpenny. 

12.  The  worth  of  the  lowest  joint,  four  score  pence ;   and  that 
is  the  worth  of  the  finger. 

13.  The  worth  of  each  of  the  teeth,  a  cow,  and  one  score  of 
silver. 

14.  The  worth  of  each  of  the  fang-teeth,  two  kine,  and  two  score 
of  silver ;  because  they  are  the  guards  of  the  teeth. 


548  ANCIENT  AND   PRIMITIVE   LAWS  AND   CODES  [Part  III. 

15.  The  trunk  itself  is  in  worth  equal  to  all  those  together.  .  .  . 

16.  Of  the  three  imminent  dangers  to  a  man  this  is. 

The  three  imminent  dangers  to  a  man  are :  .a  stroke  on  the  head, 
unto  the  brain ;  a  stroke  in  the  body,  unto  the  bowels ;  and  the 
breaking  of  one  of  the  four  limbs  of  the  body. 

17.  The  compensation  for  the  medicaments  is  this. 

For  each,  the  person  wounded  is  to  receive  three  pounds  from 
the  one  who  shall  have  so  wounded  him ;  the  amount  likewise  due 
from  the  person  who  shall  wound  him,  for  his  medical  treatment, 
is  a  pound,  without  food ;  or  nine  score  pence,  with  his  food,  and 
the  bloody  clothes. 

18.  A  tent. 

An  application  of  a  tent,  twenty-four  pence. 

19.  Red  salve.     A  medicament  of  red  salve,  twelve  pence. 

20.  A  medicament  of  herbs,  four  pence. 

21.  Of  the  amount  of  the  food  of  the  mediciner  this  is. 
His  food  daily  to  the  mediciner  is  one  penny  in  value. 

22.  His  light,  every  night,  a  penny  likewise  in  value. 

23.  Of  the  three  conspicuous  scars  this  is. 

There  are  three  conspicuous  scars :  one  upon  the  face ;  another 
upon  the  foot;  and  another  upon  the  hand;  thirty  pence  on 
the  foot;  three  score  pence  on  the  hand;  six  score  pence  on 
the  face. 

24.  Every  unexposed  scar,  four  pence. 

25.  The  cranium,  four  pence. 

For  every  broken  bone,  twenty  pence;  unless  there  be  a  dis- 
pute as  to  its  diminutiveness ;  and  if  there  be  a  dispute  as  to  its 
size  let  the  mediciner  take  a  brass  basin,  and  let  him  place  his 
elbow  upon  the  ground,  and  his  hand  over  the  basin,  and  if  its 
sound  be  heard,  let  four  legal  pence  be  paid;  and  if  it  be  not 
heard,  nothing  is  due. 

26.  Of  the  worth  of  hair  pluckt  from  the  roots,  and  the  com- 
pensation. 

The  worth  of  hair  pluckt  from  the  roots;  a  penny  for  every 
finger  used  in  plucking  it  out,  and  two  pence  for  the  thumb ;  and 
two  pence  for  the  hair. 

27.  Of  the  worth  of  blood  of  free  and  bond. 

The  worth  of  the  blood  of  a  freeman,  twenty-four  pence. 

28.  The  worth  of  the  blood  of  a  bondman,  sixteen  pence. 

29.  The  saraad  of  every  person  is  to  be  paid  according  to  his 
privilege. 

30.  There  are  three  effusions  of  blood  not  to  be  compensated ; 


J 


kjHAP.  XXII.]  LAWS   OF  HOWEL  DDA  549 

blood  from  the  teeth ;  blood  from  a  scab ;  and  blood  from  the  nose ; 
to  the  lord,  however,  a  dirwy  is  to  be  paid  for  it ;  but  nothing  is 
paid  to  him  whose  blood  is  drawn,  for  it  is  apt  to  flow ;  his  saraad, 
however,  is  to  be  paid  to  him. 

Chap.  XXV.     Of  corn  damage  this  treats. 

1.  Every  owner  of  corn  is  to  mind  his  corn;  and  every  owner 
of  an  animal  is  to  mind  his  animal,  within  and  without;  and, 
therefore,  it  is  right  for  every  person  to  take  upon  his  corn.  Thus 
it  is  right  to  take  for  whiter-tilth ;  money  payment  for  it  until 
until  the  feast  of  St.  Bride;  and  thence  onward,  reparation  for 
damage :  for  spring-tilth ;  from  the  feast  of  St.  Bride  until  the 
calends  of  May,  money  payment;  from  the  calends  of  May  on- 
ward, reparation  for  damage. 

2.  At  all  times  to  release  an  animal  impounded,  money  pay- 
ment only  is  due ;  and  it  is  thus  that  money  is  to  be  paid ;  a  penny 
for  a  horse ;   a  halfpenny  for  a  bullock. 

3.  For  a  colt  or  filly,  from  the  fourteenth  day  onward  after 
it  is  foaled,  a  penny,  like  as  for  its  mother. 

4.  A  calf,  from  the  time  of  its  birth  until  the  calends  of  winter, 
is  to  be  impounded  from  one  meal-time  to  another. 

5.  Lambs  and  kids,  while  they  are  sucking,  are  to  be  impounded 
from  one  meal-time  to  another;  or  else  to  be  mixed  with  their 
dams :  the  period  during  which  they  suck  is  until  the  calends  of 
May ;  and  thence  onward,  for  trespass  upon  corn,  they  rank  with 
their  dams. 

6.  The  swine,  the  sheep,  the  goats,  the  geese,  and  the  hens; 
the  second  choice  of  them  is  due. 

7.  The  pigs,  from  the  time  they  turn  up  the  cow-dung  with 
their  snouts,  are  subject  to  the  same  law  as  their  mother,  for 
trespass  upon  corn. 

8.  In  the  law  it  was  one  from  the  swine,  and  one  from  the  small 
animals,  which  we  have  mentioned  above,  though  there  might 
be  only  three  of  them ;  the  cause  was,  the  swine  returned  to  the 
person  who  owned  them,  and  one  remained  with  the  owner  of 
the  corn ;  but  one  is  not  to  be  taken  of  two  swine,  for  the  swine 
could  not  return  to  the  owner  of  the  swine,  if  it  remained  so. 
Then  it  was  altered  to  one  of  every  fifteen  of  the  pigs ;  and  one  of 
every  thirty  sheep ;  and  from  the  goats,  the  poultry,  and  the  geese, 
one  of  every  thirty,  in  like  manner. 

9.  Poultry  are  not  to  be  taken  upon  corn,  except  during  the  first 
fortnight  after  the  corn  is  sown,  before  it  springs ;   from  that  time 


k 


550  ANCIENT  AND  PRIMITIVE   LAWS  AND  CODES  [Part  III. 

until  it  shoot  into  ear,  they  are  not  to  be  taken;    but  from  the 
time  when  the  grain  is  formed,  they  are. 

10.  Every  crop  that  a  person  shall  harvest,  he  is  to  look  after ; 
and  the  cattle  are  free:  by  the  crop  is  understood,  corn  after 
it  is  severed  from  the  land  whereon  it  grew;  the  produce  of  an 
orchard;  cabbage;  flax,  after  it  is  cut,  or  in  a  garden  uncut; 
tedded  hay ;  thatch  for  houses ;  and  their  fence ;  leeks ;  and  every 
thing  that  pertains  to  a  garden.  Let  him  fence  so  strong  about 
his  garden,  that  beasts  cannot  break  into  it;  and  if  he  do  not^ 
and  it  should  be  broken  into,  he  is  not  to  be  compensated ;  except 
for  the  trespass  of  poultry  and  geese;  because  it  is  not  possible 
to  fence  so  as  to  exclude  them,  since  they  can  fly. 

11.  The  barns  are  to  be  open  from  the  time  the  first  sheaf  is 
brought  into  them,  until  the  calends  of  winter,  to  admit  the  air; 
and,  if  the  corn  be  damaged  during  that  period,  the  owner  is  ta 
be  compensated. 

12.  From  the  calends  of  winter  onward,  the  barns  shall  be 
closed  in  the  manner  required;  they  are  to  be  closed  by  three 
eatherings  on  the  sill,  and  a  wattle  upon  the  door-way  with  three 
bands  thereon,  two  on  the  back,  and  one  on  the  front ;  and,  if 
that  be  broken,  the  corn  and  the  barn  are  to  be  compensated ;  the 
corn  in  the  barn,  by  giving  a  whole  sheaf  for  every  damaged  sheaf. 

13.  If  a  person  find  an  animal  upon  his  corn,  and  it  be  dis^ 
puted  whether  he  found  it  there ;  let  it  be  determined  by  the  oath 
of  the  taker. 

14.  If  corn  be  damaged,  and  the  animals  be  not  overtaken 
upon  the  corn,  let  the  oath  of  the  owner  exonerate  them ;  for  there 
can  be  no  testimony  as  to  an  animal ;  for,  if  all  shall  assert  that 
they  saw  them,  it  will  not  avail. 

15.  A  voluntary  oath  is  not  to  be  taken  concerning  them,  since 
it  will  not  avail,  though  acknowledged,  if  the  owner  shall  excul- 
pate them. 

16.  If  a  horse  be  found  stretching  his  neck  over  a  hedge  eating 
the  corn,  it  is  not  right  to  take  him,  but  to  obtain  compensation 
for  the  damage ;   unless  he  be  exculpated. 

17.  If  either  a  horse  or  other  animal  be  found  with  its  two 
fore-feet  upon  the  corn,  it  is  not  to  be  taken,  since  it  was  not 
wholly  upon  the  corn :  and  part  is  not  the  whole ;  and,  if  it  be 
not  cleared,  the  damage  is  to  be  compensated. 

18.  If  a  person  tether  his  mare  by  the  side  of  corn,  and  her 
colt  damage  the  corn,  and  cannot  be  caught ;  let  the  mare  be  taken 
from  the  place  she  is  in,  and  brought  to  the  house;   and  let  the 


Chap.  XXII.]  LAWS  OF  HOWEL  DDA  551 

colt  be  detained  in  the  house,  and  the  mare  taken  back  to  her 
former  place :  and  here  the  wild  is  caught  by  the  tame :  and  that 
does  not  constitute  an  illegal  act. 

19.  Calves,  lambs,  and  kids  need  not  be  loosed  by  the  taker, 
but  at  his  will,  between  meal-times;  for  no  animal  will  die,  by 
being  impounded  from  one  meal-time  to  another. 


25.  A  foal  following  its  mother  is  not  to  be  taken,  and  that 
is  called  a  darting  foal. 

26.  Swine  are  not  to  be  taken  for  trespassing  upon  corn,  from 
the  feast  of  St.  John  unto  the  calends  of  January;  unless  they 
be  found  in  a  barn,  or  in  a  meadow. 

27.  Whoever  shall  will  to  preserve  a  meadow,  let  him  keep 
it,  from  the  feast  of  St.  Patrick  unto  the  calends  of  winter:  a 
meadow  is  land  appropriated  for  hay  only,  and  enclosed  by  a 
fence.  It  is  to  be  preserved  unto  the  calends  of  winter,  because 
it  is  mowed  twice  in  the  year. 

28.  Whoever  shall  find  an  animal  trespassing  upon  such  a 
meadow,  let  him  take  thereon  as  upon  corn.  If  he  chance  to  find 
them  thereon,  and  cannot  overtake  them,  though  confessed, 
damage  to  grass  is  not  to  be  compensated. 

29.  Whoever  makes  a  fence  about  his  corn,  let  him  take  ani- 
mals found  upon  the  grass  that  may  be  therein,  as  well  as  upon 
the  corn ;   because  nothing  is  to  depasture  there. 

30.  No  one,  except  a  lord,  is  to  have  more  than  two  reserves 
of  grass,  a  field,  and  a  meadow;  and,  if  he  will  to  keep  it,  let 
him  obtain  a  cross  from  the  lord,  and  under  the  sanction  of  that 
let  him  keep  it. 

31.  Thus  animals  trespassing  upon  corn  are  to  be  impounded: 
if  they  be  wild,  they  are  to  be  taken  and  placed  out  in  a  yard; 
if  they  be  tame  animals,  they  may  be  impounded,  in  or  out,  at 
pleasure.  If  there  be  animals  belonging  to  two  different  persons, 
they  are  not  to  be  mixed  together;  and  if  they  be  animals  of 
different  species,  they  are  not  to  be  mixed ;  but;  if  they  be  placed 
together,  every  one  of  them  is  to  be  tied.  It  is  not  right  to  tie 
swine,  only  to  take  them.  It  is  right  to  tie  poultry  and  geese,  in 
taking  them. 

32.  If  a  person  require  a  pledge  for  his  corn,  with  the  time 
of  a  pledge  which  shall  lapse;  no  one  is  to  give  it,  except  for 
the  time  of  a  corn-pledge ;  and  a  corn-pledge  does  not  lapse  until 
the  calends  of  winter. 


552  ANCIENT  AND   PRIMITIVE   LAWS  AND  CODES  [Part  III. 

33.  Whoever  is  entitled  to  corn,  either  by  surety ;  or  for  dam- 
age done  by  cattle  in  the  harvest ;  or  by  purchase ;  and  shall  not 
demand  it  before  the  calends  of  winter;  he  is  not  afterwards  en- 
titled to  it ;  because  he  has  suffered  the  proper  period  for  urging 
his  claim  to  elapse  :  for  it  is  not  right  to  claim  corn  from  one  year  to 
another. 

34.  Whoever  in  taking  cattle  shall  injure  them,  whatever  the 
nature  of  the  injury,  the  taker  is  to  pay  for  it ;  for  the  animals 
are  to  return  home  without  claim,  without  surclaim,  except  pay- 
ment to  the  taker  of  the  property. 

35.  Whatsoever  person  shall  impound  an  animal,  and  suffer  it 
to  graze ;   he  is  not  to  lose  his  claim,  for  doing  more  than  right. 

36.  Whoever  shall  take  animals,  and  they  break  out  and  get 
home,  nothing  is  due  for  them  ;  for  it  is  not  right  that  there  should 
be  two  takings  for  one  trespass. 

37.  Whoever  shall  impound  an  animal,  and  refuse  a  lawful 
pledge,  requiring  money ;   if  the  animal  die,  he  is  to  pay  for  it. 

38.  Whoever  shall  take  many  animals,  and  detain  one  of  them 
apart,  for  the  act  of  the  whole,  and  suffer  the  others  to  go  away ; 
he  is  only  to  receive  what  shall  fall  on  that  one  animal. 

39.  Whoever  shall  find  a  small  animal  upon  his  corn,  whether 
a  sheep,  a  goat,  or  a  swine ;  it  is  at  the  option  of  the  taker,  either 
to  keep  account  of  them,  until  one  animal  be  due ;  or  else  a  penny 
for  a  sheep,  or  a  goat,  after  it  shall  have  been  taken  five  times; 
and  a  penny  for  the  swine  when  taken,  or  reckon  until  a  swine  be 
wholly  due. 

40.  Whoever  comes  to  liberate  animals  for  others,  it  is  right 
for  the  taker  to  ask  him,  whether  he  will  be  responsible  for  them ; 
and,  if  he  will  not  be  responsible,  he  is  not  to  deliver  them  to 
him :  and,  should  they  so  die  in  his  pound,  not  one  is  to  be  paid 
for.  If  the  other  engage  to  be  responsible  for  them  in  all  things, 
let  a  pledge  be  taken  from  him,  with  a  surety  for  its  dilysrwydd 
(warranty  by  a  seller  of  property  that  no  claim  can  be  substan- 
tiated to  the  ownership  of  the  property  other  than  his  own) :  and, 
if  another  owner  should  come  to  claim  that  pledge,  he  must  pro- 
duce, of  his  own  property,  one  equally  good,  before  the  other  is  to 
go  from  him. 

41.  The  pledge  that  is  given  by  a  wife,  the  husband  is  not  to 
nullify ;  and  the  pledge  given  by  a  husband  is  not  to  be  nullified 
by  the  wife. 

42.  Whoever  shall  have  had  his  corn  greatly  damaged  by  tres- 
pass, and  find  animals  upon  it,  and  demand  from  the  owner  of 


Chap.  XXII.]  LAWS  OF  HOWEL  DDA  553 

those  animals  compensation  for  all  the  damage;  he  is  not  en- 
titled to  more  than  the  owner  of  the  cattle,  on  his  oath,  may  pay 
him  as  their  damage ;  whether  that  be  much  or  little :  and  that 
is  to  be  of  the  same  kind  of  land,  in  the  same  course  of  tillage  :  and 
that  is  called  compensation  for  damage :  and  it  is  to  be  claimed 
before  the  calends  of  winter. 

43.  Whoever  shall  remove  his  corn  from  the  stubble  to  the  ley, 
and  make  his  rick  upon  the  ley ;  if  it  be  damaged  there,  he  is  not 
to  receive  compensation.  And  flax,  not  in  a  garden,  is  subject  to 
the  same  law  as  such  corn. 

44.  There  is  no  person,  whatever  may  be  his  pledge,  that  is 
exempt  from  compensating  damage. 

45.  No  person  is  to  milk,  or  to  make  any  use  of  cattle  that 
are  impounded,  though  he  may  be  the  owner  of  them ;  without  the 
permission  of  the  captor. 

46.  The  taker  is  not  to  seek  the  owner  of  the  cattle  he  may 
take;  neither  is  he  to  conceal  them;  and  if  he  should  conceal 
them,  and  they  die,  or  be  lost,  through  his  negligence;  let  him 
pay  for  them. 

And  so  terminates  concerning  corn  damage. 

The  proof  book  of  the  laws  of  Wales  ends.    Amen. 


PART  IV 

ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS 

Chapter  XXIII 

TRIALS 

Section  1.    EGYPTIAN 

No.  1.    The  Inscription  of  Mes 

(Rameses  II) 

Translatkd  by  Alan  Gardiner 

No.  2.    A  Conspiracy  Case 

(Rameses  III) 
Translated  by  P.  Le  P.  Renoup 

No.  3.    Spoliation  of  Tombs 

(Rameses  IX) 
Translated  by  P.  J.  De  Horrack 

Section  2.    BABYLONIAN 

No.  1.    Defense  of  a  Magistrate 
Translated  by  H.  Fox  Talbot 

No.  2.    Lawsuit  concerning  a  Slave 
Translated  by  Jules  Oppert 

Section  3.    GRECIAN 

Demosthenes'  Oration  against  Aristocrates 

Translated  by  Charles  R.  Kennedy 

Section  4.    ROMAN 

No.  1.    Gaius  —  The  Sacramental  Action 

Translated  by  David  Nasmith 

No.  2.    Cicero's  Oration  for  Milo 
Translated  by  C.  D.  Yonge 

Section  5.    GERMANIC 

Formulae  Liturgic^ 

Translated  by  Ernest  F.  Henderson 


Chapter   XXIV 

DOCUMENTS 

Section  1.    EGYPTIAN 
No.  1.    A  Will  (4th  Dynasty)  , 

Translated  by  James  H.  Breasted 

No.  2.    The  Contracts  of  Hepzefi  (12th  Dynasty) 
Translated  by  James  H.  Breasted 

No.  3.     Marriage  Contract  (31st  Dynasty) 
Translated  by  E.  Revillout 

Section  2.    BABYLONIAN  AND  ASSYRIAN 

No.  1.    Early  Babylonian  Legal  Documents  (1st  Dynasty) 

Translated  by  Herman  Ranke 

No.  2.    Later  Contract  Tablets 
Translated  by  Theo.  G.  Pinches 

No.  3.    Assyrian  Contract  Tablets 
Translated  by  Rev.  A.  H.  Sayce 

No.  4.    Assyrian  Deeds 
Translated  by  Jules  Oppert 

No.  5.    Contract  Tablets  relating  to  Belshazzar 
Translated  by  Rev.  A.  H.  Sayce 

No.  6.    Cuneiform  Tablets  of  Kappadokia 
Translated  by  Rev.  A.  H.  Sayce 

No.  7.    Will  of  Sennacherib 
Translated  by  Rev.  A.  H.  Sayce 


Chapter  XXIII 

TRIALS 

Section  1.     EGYPTIAN 

NO.   1.    THE  INSCRIPTION  OF  MES^ 

1.    INTRODUCTION 

(According  to  the  estimate  of  Professor  Loret,  3  or  4  horizontal  lines  have 
been  lost  at  the  beginning  of  the  inscription.  Their  probable  contents 
were  as  follows  :  a)  the  date  at  which  the  proces  verbal  was  drawn  up  .  .  . ; 
b)  a  narrative  introductory  to  the  depositions.  ...  It  was  doubtless  related 
how  Mes  laid  a  plaint  before  the  Vizier  and  the  Great  Qenbet.  A  member 
of  that  court  will  have  been  sent  as  commissioner  to  the  lands  of  Neshi, 
in  order  to  examine  the  litigants  and  their  witnesses.  The  only  frag- 
ment of  this  narrative  which  remains  states  that  some  one  (no  doubt 
the  commissioner  of  the  Qenbet)  brought  the  notables  of  the  town  to  hear 
the  depositions.) 

.   .   .  officer(?)  brought  the  notables  of  the  town  to  hear  their 
depositions. 

2.  Deposition  of  the  Plaintiff  Mes 

a.    The  Early  History  of  the  Estates  of  Neshi 

What  was  said  by  the  ...  of  the  bearer  of  weapons, 
who  .   .   .  Rameses,  [Mes]. 

As  for  me,  I  am  the  son  of  Hui,  the  son  of  Urnero,  [the  daughter] 
of  Neshi.  A  division  of  property  was  made  [for]  Urnero  and  her 
brothers  and  sister  [in]  the  [Great]  Qenbet  [in  the  time  of]  Horem- 
heb.     They  sent  the  priest  of  the  Htter  Iniy,  who  was  an  officer  of 

1  [This  valuable  record  of  a  private  lawsuit  (an  appellate  proceeding) 
surviving  from  Pharaonic  times  was  discovered  by  Professor  Loret  in  the 
tomb  of  Mes  at  Sakkara.  The  translation  is  by  Alan  H.  Gardiner,  pub- 
lisnea  by  j.  u.  Hmricns  ^Leipzig,  1905 ;  "  Untersuchungen  zur  Geschichte 
und  Altertumskunde  Agyptens,"  IV,  3,  herausgegeben  von  Kurt  Sethe), 
and  is  reprinted  with  the  consent  of  the  pubHsher.     (Price,  Marks  9.60.) 

This  inscription  might  properly  be  entitled  Mes  v.  Khay,  appellant  and 
respondent  respectively ;  since  it  was  an  appeal  by  which  Mes  recovered 
ancestral  property  awarded  to  Khay  by  an  earlier  judgment.  The  text 
shows  that  the  same  property  had  been  previously  the  subject  of  much 
contention  among  members  of  the  family  of  Mes.  Khay,  through  con- 
nivance with  the  priest  Amenemiopet,  who  altered  the  public  land  register, 
and  supported  by  forged  title  documents,  had  fraudulently  gotten  a  decree 
in  his  favor  to  the  estate  in  question.     Mes  overcame  the  forgeries  on  the 

557 


558  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

the  Great  Qenbet,  to  the  Uahit  of  Neshi :  and  a  division  was  made 
for  me  and  my  brothers  and  sisters ;  and  they  made  my  mother, 
the  dweller  in  the  town,  Urnero  administrator  for  her  brothers  and 
sisters. 

Then  Takharu,  the  sister  of  Urnero,  [pleaded  together  with 
Urnero  (?)  before]  the  Great  Qenbet.  The  Qenbet  officer  was  sent 
forth,  and  they  caused  each  of  the  six  heirs  to  take  [cognisance] 
of  his  portion.    Now  the  king  Amosis  I  had  [given  x  arourae  of  land] 

appeal  by  introducing  evidence  which  showed  clearly  his  descent  from 
Hui  and  Urnero  and  Neshi,  the  former  owners  of  the  property. 
The  following  genealogies  show  the  descent  of  Mes  and  Khay : 

1.  Descent  of  Mes. 

Neshi 

several  generations 


Sheritre 

L 


I  I  I  i  I  i 

Urnero  Takharu       Kakay  Hentudbu  X  Baka 


1 
Nubnofret  =  Scribe  Hui 

Mes 

2.  Descent  of  Khay. 

PrShotep 

I  '  I 

Thaui  Chief  of  Stable  Hui 

Userhat 

Khay. 

Historical  Synopsis 

Estates  given  to  Neshi Temp.  Amosis  I. 

Sheritre Temp.  Akhenaten. 

First    lawsuit  —  Division    of    property 
for  Urnero  and  her  brothers  and  sisters. 
Urnero  made  trustee Temp.  Horemheb. 

Second  lawsuit  —  Takharu  appeals  and 

a  new  partition  is  made Temp.  59th  year  Horemheb. 

Third     lawsuit  —  Hui     litigates     with 
Takharu  and  Smentoui Temp,  unknown. 

Fourth     lawsuit  —  Nubnofret  against 

Khay.     Khay  prevails Temp.  18th  year  Rameses  II. 

Fifth  lawsuit  —  Mes  appeals Temp,  unknown. 

See,  for  further  details  of  this  litigation,  the  commentary  of  Mr.  Gar- 
diner, op.  cit.,  p.  23,  seq.  The  date  usually  given  for  Rameses  II  is  circa 
1300  B.C.] 


Chap.  XXIII,  §  1,  1.]  INSCRIPTION   OF  MES  559 

as  a  reward  to  Neshi  my  father.  And  further,  since  king  Amosis 
I,  this  land  was  held  by  one  (heir)  after  another  until  [this  day]. 

Then  Hui,  my  father,  and  his  mother  Urnero  pleaded  [together 
with  their]  brothers  and  sisters  before  the  Great  Qenbet  and  the 
Qenbet  of  Memphis   .   .   .  writing  (?). 

[Then  my  father(?)  Hui]  died. 

6.    The  Litigation  between  Nubnofret  and  Khay 

And  Nubnofret  my  mother  came  to  till  the  portion  of  Neshi  my 
father,  but  she  was  not  allowed  to  till  (it) .  Then  she  laid  a  plaint 
against  the  administrator  Khay,  and  they  [caused  them  to  appear 
before(?)]  the  Vizier  [in]  Heliopolis  in  the  year  14  +  x  of  king 
Rameses  II.  [Then  .  .  .  laid  a  plaint  saying  (?)  :]  "Of  a  truth 
I  am  cast  forth  from  this  land  of  Neshi  my  father."  Then  she 
said :  "  Let  there  be  brought  to  me  the  registers  from  the 
Treasury,  and  likewise  from  the  Department  of  the  Granary  of 
Pharaoh.  For  I  am  well  pleased  to  say,  that  I  am  the  daughter  of 
Neshi.  Division  was  made  for  me  together  with  them,  but  the 
administrator  Khay  does  not  know(?)  my  [right(??)]  as  a  sister 
(??)." 

The  administrator  Khay  laid  a  plaint  in  the  Great  Qenbet  in 
the  year  18,  and  they  sent  forth  the  priest  of  the  litter  Amenemio- 
pet,  who  was  an  officer  of  the  Great  Qenbet,  together  with  him, 
having  a  false  register  in  his  hand,  (whereby)  I  ceased  to  be  a 
child  of  Neshi.  And  they  made  the  administrator  Khay  [adminis- 
trator] for  his  brothers  and  sisters  in  the  place  of  my  heirship, 
although  [I  was]  an  heir  of  Neshi  my  father. 

c.   Mes  appeals  against  the  Judgment  in  Favour  of  Khay 

And  now  see !  I  am  in  the  Uahit  of  Neshi  my  father,  in  which 
is  the  Hunpet  of  Neshi  my  father.  Let  me  be  examined  and  let 
me  see  whether  (?)  Urnero  was  the  mother  of  Hui  my  father, 
[who  was]  called  [the  son  of(??)]  Neshi,  although  she  is  not  duly 
enrolled  in  the  register,  which  the  administrator  Khay  made  against 
me  together  with  the  Qenbet  officer  who  came  with  him.  I  bring 
a  plaint  saying :  it  is  a  false  register  that  has  been  made  against 
me.  For  verily  when  I  was  examined  before,  I  was  found  to  be 
inscribed.  Let  me  be  examined  together  with  my  coheirs  before 
the  notables  of  the  town,  and  let  me  see  whether ( ?)  I  am  the  son 
of  Neshi,  or  whether  ( ?)  it  is  not  so(  ?  ?) . 


560  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

3.  The  Deposition  of  the  Defendant  Khay 

a.   Khay^s  Version  of  the  Early  History  of  the  Estates 

What  was  said  by  the  administrator  Khay. 

I  am  the  son  of  the  administrator  Userhat,  the  son  of  Thaui  .  .  . 
[the  son  of]  Prehotep.  He  gave  to  me  his  portion  of  lands  in 
writing  in  the  time  of  king  Horemheb  before  witnesses :  and  it 
was  the  chief  of  the  stable  Hui  the  son  of  Prehotep  who  had  tilled 
it  since  the  time  of  king  [Amenothes(?)].  I  succeeded  to  [him  in] 
the  time  of  Horemheb  unto  this  day.  Then  the  scribe  Hui  and 
the  dweller  in  the  town  Nubnofret  seized  my  portion  of  lands  :  and 
she  gave  them  to  the  artificer  Khay[iri(?)]. 

h.    The  Lawsuit  between  Khay  and  Nubnofret 

Then  I  laid  a  plaint  before  the  Vizier  in  Heliopolis,  and  he  caused 
me  to  plead  together  with  Nubnofret  before  the  Vizier  in  the  Great 
Qenbet.  I  brought  my  [testimonies  .  .  .  ]  in  my  hand  since 
Amosis  I,  and  Nubnofret  brought  her  testimonies  in  like  manner. 
Then  they  were  unrolled  before  the  Vizier  in  the  Great  Qenbet. 
And  the  Vizier  said  to  [her(?)] :  "These  documents  were  written 
by  one  of  the  two  parties." 

Then  Nubnofret  said  to  the  Vizier  :  "  Let  there  be  brought  to  me 
the  [two  registers  from  the  Treasury  and  likewise  from  the  De- 
partment of  the  Granary ( ?)."  And  the  Vizier]  said  to  her  :  "Very 
good  is  that  which  thou  say  est."  Then  they  brought  us(  ?)  down- 
stream to  Per-Ramessu.  And  they  entered  into  the  Treasury  of 
Pharaoh,  and  likewise  into  the  Department  of  the  Granary  of 
Pharaoh,  and  they  brought  the  two  registers  before  the  Vizier  in 
the  Great  Qenbet.  Then  the  Vizier  said  to  Nubnofret:  "Who 
is  thy  heir  [among]  the  heirs  who  are  upon  the  two  registers  that 
are  in  [our]  hand?"  And  Nubnofret  said:  "There  is  no  heir  in 
them."     "Then  thou  art  in  the  wrong,"  said  the  Vizier  to  her. 

Then  the  scribe  of  the  royal  table,  Kha,  the  son  of  Mentuemmin, 
said  to  the  Vizier :  "  What  is  the  decision  which  thou  makest  with 
regard  to  Nubnofret?"  And  the  Vizier  said  to  Kha:  "Thou 
belongest  to  the  Residence.  Go  then  to  the  Treasury,  and  see  how 
the  matter  stands  with  her."  And  Kha  w^ent  out,  and  he  said  to 
her :  "  I  have  examined  the  documents.  Thou  art  not  inscribed 
in  them." 

Then  they  summoned  the  priest  of  the  litter,  Amenemiopet, 
and  they  sent  him  forth,  saying:    "Call  together  the  heirs,  and 


Chap.  XXIII,  §  1,  1.]  INSCRIPTION   OF  MES  561 

show  unto  them  the  lands,  and  make  a  division' for  them."     So  did 
they  command  him  together  with  the  Qenbet  of  Memphis. 

Then  I  sent  the  .  .  .  ,  Ruiniuma(  ?)  .  .  .  who  was  overseer 
of  horses.  And  the  officer  of  the  Qenbet,  Amenemiopet  sum- 
moned Mesmen(?),  saying,  "Come":  .  .  .  Then  they  sum- 
moned him(?)  to  the  West  bank.  And  they  gave  to  me  13 
arourse  of  land  and  they  gave  lands  [to  the  coheirs(??)  before]  the 
notables  of  the  town. 

4.  The  Evidence 
a.  Sworn  Depositions  of  the  Litigants  and  the  Witnesses 

What  was  said  by  the  goatherd  Mesmen(?). 

"[By  Amon  and  by  the  Prince,]  I  speak  by  the  truth  of(?) 
Pharaoh,  and  I  speak  not  falsely;  and  if  I  speak  falsely,  may 
[my  nose  and  my  ears]  be  cut  off,  [and  may  I  be  transported  to] 
Kush.  The  scribe  Hui  was  the  son  of  Urnero,  and,  as  they  say, 
the  son  of  Neshi.     I  saw  .   .   .   Urnero  .   .   .  lands." 

What  was  said  by  the  administrator  Khay. 

"  By  Amon,  and  by  the  Prince.  The  scribe  Hui  was  the  son  of 
[Urnero]  the  daughter  of  Neshi.  And  if  .  .  .  [say(?)]:  'It  is 
not  truth,'  then  let  me  be  put  to  confusion ( ?).  By  Amon  and  by 
the  Prince  .  .  .  not  .  .  .  cultivate  .  .  .  beyond  them.  Their 
harvest  was  taxed  (?)   ..." 

What  was  said  by  (?). 

"By  [Amon  and  by]  the  Prince,  if  they  examine  and  if  they 
find  that  I  cultivated  .  .  .  portion  .  .  .  me,  let  me  be  put  to 
confusion(?)." 

What  was  said  by   the   priest  of   the  temple  of  Ptah  .   .   . 

"  By  Amon  and  by  the  Prince,  I  speak  [in  truth,  and  I  speak  not] 
falsely ;  and  if  I  speak  falsely,  may  my  [nose]  and  my  ears  be  cut 
off,  and  may  I  be  transported  to  Kush.  I  knew  [the  scribe  Hui(  ?)] 
the  son  of  Urnero.  He  cultivated  [his]  lands  from  [year]  to  year, 
and  he  cultivated  them  saying :  '  I  am  the  son  of  Urnero,  [the 
daughter  of  Neshi'(?)]." 

[What  was  said  by]  the  honey-maker  of  the  Treasury  of  Pharaoh 
Hori(?). 

"By  Amon  and  by  the  Prince,  if  I  speak  falsely,  may  my  nose 
and  my  ears  be  cut  off  [and  may  I  be  transported  to  Kush.  The 
scribe  Hui]  was  the  son  of  Urnero ;  and  moreover,  Urnero  was  the 
daughter  of  Neshi." 

What  was  said  by  the  chief  of  the  stable  Nebnefer. 


562  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS         [Part  IV. 

Likewise,  saying:  "As  for  the  scribe  Hui,  he  used  to  [cultivate 
his  lands  from  year]  to  year,  [doing]  all  that  he  desired.  And 
they  gathered  in  for  him  the  harvest  of  his  fields  year  by  year. 
Then  he  pleaded  [together  with  the  dweller  in  the  town]  Takharu 
the  mother  of  the  officer  Smentoui.  And  then  he  pleaded  together 
with  Smentoui  her  son,  and  they  gave  [the  lands  to]  Hui,  and  they 
were  duly  confirmed  (to  him)." 

What  was  said  by  the  .   .   .  Buthartef . 

Likewise,  saying :  "The  scribe  Hui  was  the  son  of  Urnero  and 
Urnero  was  [the  daughter  of  Neshi]." 

What  was  said  by  the  dweller  in  the  town  Peihay. 

"  By  Amon,  and  by  the  Prince,  if  I  speak  falsely,  may  I  be  sent 
to  the  back  of  the  house.  The  scribe  [Hui  was  the  son  of]  Urnero ; 
and  moreover,  Urnero  was  the  daughter  of  Neshi." 

What  was  said  by  the  dweller  in  the  town  Pipuemuia. 

Likewise. 

What  was  said  by  the  dweller  in  the  town  Tuy. 

Likewise. 

b.   Documents  cited  as  Evidence 

(Some  4  or  5  horizontal  lines  are  entirely  lost  at  the  top  of  the  S.  wall. 
As  to  their  contents  nothing  certain  can  be  conjectured.  But  .  .  .  it  is  to  be 
presumed  that  the  preceding  lines  likewise  contained  documentary  evi- 
dence. It  is  impossible  to  say  whether  any  sentence  marking  the  transi- 
tion from  the  oral  to  the  documentary  evidence  was  contained  in  the 
lost  lines.).  .  . 


What  was  said  by  the  dweller  of  the  town  Maia  before  the 
[Great]  Qenbet  in  [the  time  of  ?  ?]   .   .   . 

"...  Urnero  his  mother  took  the  (?)  .  .  .  leave  to  me  my 
grain.  I  brought  to  me  the  administrator  .  .  .  By  Amon  and 
by  the  Prince  ...  in  that  I  am  deprived  of  my  portion." 

A  copy  was  made,  and  [it  was  placed  in]  the  judgment-hall  of 
Pharaoh.      .   .   .  judges.     List  of  the  same  :  — 

The  overseer  of  the  town  and  Vizier  thereof  ( ?)   .   .   . 
The   ...   of  the  cavalry  ...   a. 
The  overseer  of  infantry  lia. 
The  chief  of  auxiliaries  Hui. 

The  royal  messenger  (?)  Runry. 
The  royal  messenger ( ?)  Amenmes. 
The  scribe  of  .   .   . 
The  scribe  of  .  .  .  mes. 


Chap.  XXIII,  §  1,  1.]  INSCRIPTION  OF  MES  563 

Before  the  Qenbet  on  this  day. 
Year  59  under  the  Majesty  of  King  Horemheb. 
Copy  of  the  examination,  which  the  priest  [of  the  litter],  Iniy, 
who  was  a  Qenbet-officer,  [made  of]  the  Hunpet  of  the  overseer  of 
vessels  Neshi,  [which  is  in]  the  Uahit  of  Neshi. 

"I  came  to  the  Uahit  of  Neshi  [the  place  where]  the  lands  are,  con- 
cerning which  the  dweller  in  [the  town]  Urnero,  and  the  dweller  in  the 
town  Takharu  dispute.  They  called  together  the  heirs  of  Neshi 
with  the  notables  of  the  town,  who  make  .  .  .  [of]  the  Hunpet 
[of]  Neshi,  in  order  to  hear  their  depositions.  List  of  the  witnesses 
of  Neshi :  — 

The  dweller  in  the  town,  Kakay. 
The  dweller  in  the  town,  Hentudbu. 
The.   .   . 
The.   .  .  Baka. 
Total,  4  persons. 

List  of  the  witnesses  who  came  from  the  town  to  swear  to 
them(?) 

The  field-labourer,  Heriherneferher. 


What  they  said  with  one  voice : 

"  By  Amon  and  by  the  Prince,  we  speak  in  truth  .   .   ." 

[What  was  said  by  .   .   .] 

"As  for  me,  I  was  in  the  town  .  .  .  day.  I  saw  the  Hun- 
pet of  the  overseer  of  vessels  Neshi,  when  it  was  held  by  the  co- 
heirs. 

...  in  the  time  of  the  Enemy  of  Ikhitaton  .  .  .  Ikhitaton 
[where]  Pharaoh  was(?).  And  the  dweller  in  the  town  Sheritre, 
the  mother  of  the  dweller  in  [the  town]  [Takharu]  .  .  .  Iriy 
was  ...  for  the  Hunpet  cultivating  .  .  .  Sheritre  the  mother 
of  Takharu." 

5.  Verdict? 
Now  after  ... 

(Here  the  inscription  comes  to  an  end.) 


564  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

NO.  2.    ABSTRACT  OF  CRIMINAL  PROCEEDINGS  IN  A  CASE 
OF  CONSPIRACY^  IN   THE  TIME   OF  RAMESES  III 

This  translation  is  of  a  hieratic  text  contained  in  a  papyrus  belonging 
to  the  Royal  Museum  at  Turin,  and  known  to  scholars  under  the  title 
of  *'  Le  Papyrus  Judicaire  de  Turin,"  given  to  it  by  M.  Deveria,  who 
first  published  it  in  the  "Journal  Asiatique "  of  1865,  with  a  transla- 
tion and  dissertation  extending  over  several  numbers  of  the  journal. 
The  whole  has  also  appeared  as  a  separate  publication.  The  document 
is  unfortunately  imperfect ;  the  first  page,  which  certainly  set  forth 
the  nature  of  the  case,  being  almost  entirely  destroyed.  This  defect  is 
the  more  to  be  lamented  because  the  pages  which  have  been  preserved 
throw  but  little  light  upon  the  nature  of  the  crimes  of  the  accused  persons. 
There  was  undoubtedly  a  conspiracy  against  the  person  of  the  sovereign, 
but  we  are  left  in  the  dark  as  to  the  kind  of  mischief  intended  by  the 
conspirators.  The  text  abounds  in  other  difficulties  which  our  present 
imperfect  acquaintance  with  Egyptian  archaeology  does  not  enable  us  to 
overcome.  One  of  the  criminals,  for  instance,  is  "Fan-bearer  of  the 
Auit."  I  confess  that  I  do  not  yet  know  of  any  satisfactory  translation 
of  the  word  Auit,  which  represents  a  corporation  of  some  kind.  M. 
Deveria  connected  the  word  with  the  notion  of  slaughter,  but  M.  Chabas 
has  shown  how  utterly  erroneous  is  this  supposition.  Nor  am  I  able 
to  explain  the  exact  nature  of  the  Pa-chent,  which  was  apparently  a  part 
of  the  royal  palace  or  court.  It  is  certainly  a  gross  error  to  translate  the 
word  by  "harem,"  as  M.  Deveria  has  done.  "Women  of  the  Pa-chent" 
no  more  imply  an  Egyptian  harem  than  "Ladies  of  the  Bedchamber" 
imply  an  English  institution  of  the  same  nature.  We  must  be  content 
for  the  present  with  leaving  certain  Egyptian  words  untranslated,  till  we 
are  sure  that  the  right  English  equivalent  has  been  discovered. 

The  most  faulty  portion  of  M.  Deveria's  translation  is  the  royal  decla- 
ration at  the  commencement.  According  to  it  Rameses  handed  the  ac- 
cused over  to  a  tribunal,  not  for  trial  but  for  execution,  as  if  the  judges 
were  but  the  instruments  of  the  despot's  arbitrary  will.  M.  Chabas  has,  in 
a  most  valuable  dissertation  on  the  subject  ("  Melanges  Egyptologiques," 
Seme  series,  Vere  livraison),  shown  that  such  a  translation  is  in  direct  oppo- 
sition to  the  original  text,  according  to  which  the  Egyptian  monarch, 
far  from  asserting  the  criminality  of  the  accused,  declares  that  "as  to  the 
talk  which  men  hold  he  knows  it  not,"  that  the  judges  are  to  find  out  the 
truth,  to  punish  the  guilty,  but  to  beware  of  inflicting  chastisement  upon 
those  who  do  not  deserve  it. 

The  name  of  one  of  the  criminals,  the  major-domo,  Paibakakamen, 
occurs  on  a  contemporary  document  of  which  three  fragments  remain. 
(Two  of  these  fragments  are  called  the  Lee  Papyrus,  and  a  facsimile  of  them 
is  given  in  Sharpe's  "Egyptian  Inscriptions,"  Part  II.,  Plates  87  and  88. 
The  third  is  called  the  Papyrus  Rollin,  and  the  facsimile  of  it  was  pub- 
lished by  M.  Deveria,  in  his  dissertation  on  the  Turin  Papyrus.)  This 
latter  text,  which  was  also  an  abstract  of  criminal  proceedings,  dealt  with 
a  case  of  sorcery.  A  book  of  magic  receipts,  wax  figures  and  love  charms 
are  mentioned,  and  a  hand  is  said  to  have  been  paralyzed.  Paibakaka- 
men is  named  as  having  received  the  wax  figures  and  prescriptions  for 
paralyzing  human  limbs. 

It  will  be  remarked  that  no  less  than  three  of  the  persons  named  in 
the  earlier  part  of  the  document  as  members  of  the  judicial  commission 
(Paibasat,  the  scribe  Mai,  and  the  fan-bearer  Hora)  appear  later  on  in 
the  position  of  accomplices  in  the  conspiracy,  and  are  condemned  to  death. 

1  [Translated  by  P.  Le  P.  Renouf.  Reprinted,  by  permission,  from 
"Records  of  the  Past,"  Vol.  viii,  p.  53  seq.,  Samuel  Bagster  and  Sons, 
London.  Rameses  III  (circa  1200  b.c.)  is  reputed  to  be  the  founder  of 
the  20th  dynasty.  Some  writers  say  that  he  was  the  second  king  of  this 
dynasty.  He  is  supposed  by  other  writers  (probably  incorrectly)  to  be  the 
Pharaoh  of  the  Exodus.] 


Chap.  XXIII,  §1,2.]  A   CONSPIRACY   CASE  565 

The  expression  au-J  mut-nef  t'esef,  which  I  have  translated  "he suffered 
death,"  is  a  very  remarkable  one.  The  pronoun  t'esef  has  a  relflexive  force, 
and  very  emphatically  marks  the  agent  of  the  deed  or  the  efficient  cause 
of  the  state  expressed  by  the  verb. 

The  grammatical  reasons  are  sufficient  to  convince  me  that  all  the 
criminals  here  condemned  to  death  suffered  by  their  own  hand.  There 
ought,  surely,  to  be  nothing  startling  in  this  if  we  remember  that  in  the 
most  civilized  state  of  Greece  (and  indeed  of  all  antiquity)  persons  con- 
demned to  death  were  ordinarily  obliged  to  be  their  own  executioners. 

Page  2 

1  Those  whom  the  land  accuseth  I  give  them  in  charge  of  the 
Overseer  of  the  Treasury  Mentu-em-taui,  the  Overseer  of  the 
Treasury  Paif-re-ut, 

2  the  Fanbearer  Kare,  the  Comptroller  Paibasat,  the  Comp- 
troller Katenten,  the  Comptroller  Barmahar, 

3  the  Comptroller  Pa-arisennu,  the  Comptroller  Tahuti-rech- 
NEFER,  the  royal  Reporter  Pen-rennu,  the  Scribe  Mai, 

4  the  Scribe  Pa-ra-em-heb  of  the  Library,  Hora  the  Fan- 
bearer  of  the  Auit ; 

5  to  wit :  As  to  the  talk  which  men  hold  I  know  it  not ;  go  ye  and 
judge  them, 

6  going  and  judging  and  inflicting  death  upon  their  bodies  who 
have  inflicted  death  with  their  hand. 

7  I  know  them  not  .  .  .^-  and  chastising  the  others  .  .  .^  in 
very  truth  I  know  them  not.     Now  then 

8  go  .  .  .^  take   heart   and   beware  of   inflicting   chastisement 

9  upon  .  .  .^ 

Page  3 

1  As  to  all  that  hath  been  done,  those  who  have  done  it, 

2  let  all  that  they  have  done  be  upon  their  head. 

3  I  am  a  protector  and  a  defender  for  ever.     I  am 

4  with  the  Kings  of  Justice  who  are  in  presence  of 

5  Amen-Ra,  the  King  of  the  gods  and  in  presence  of  the  watchful 
one,  the  everlasting  King. 

Page  4 

1  Persons  brought  up  for  the  high  crimes  which  they  had  com- 
mitted and  presented  at  the  seat  of  judgment  in  presence  of  the 
high  magistrates  of  the  seat  of  judgment  in  order  that  they 

^  Lacunae. 

2  The  gap  here  destroys  the  context.  M.  Chabas  translates,  "Gardez 
vous  de  faire  chatier  quiconque  serait  prevenu  de  delit.  Et  sur  qui  eela 
ne  tombe  pas,  relativement  a  eux.     Ne  resistez  pas." 


566  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

should  be  judged  by  the  Overseer  of  the  Treasury  Mentu-em- 
TAUi,  the  Overseer  of  the  Treasury  Paif-re-ut,  the  Fanbearer 
Kare,  the  Comptroller  Paibasat,  the  Comptroller  Katenten, 
the  Comptroller  Barmahar,  the  Comptroller  Paarisennu,  the 
Scribe  Mai,  the  Scribe  Pa-ra-em-heb  of  the  Library,  Hora  the 
Fanbearer  of  the  Auit,  who  judged  them  and  found  them  guilty 
and  caused  their  chastisements  to  be  inflicted  upon  them  and 
their  crimes  were  done  away  with.^ 

2  The  great  criminal  Pai-baic\-kamen,  a  Major-domo.  He 
was  brought  up  on  account  of  his  offence  which  he  committed 
for  the  sake  of  Taia  and  the  women  of  the  Chent.  He  had  made 
one  with  them.  He  had  carried  abroad  their  words  to  their 
mothers  and  sisters  who  were  there  to  stir  up  men  and  incite 
malefactors  to  do  wrong  to  their  Lord.  Lie  was  presented  before 
the  great  Magistrates  of  the  seat  of  judgment.  They  investi- 
gated his  crimes  and  found  the  verdict,  that  he  had  committed 
them  and  that  his  crimes  had  been  consummated  by  him.  The 
Magistrates  who  judged  him  caused  his  punishment  to  be 
inflicted  upon  him. 

3  The  great  criminal  Mest-su-ra,  a  Comptroller.  He  was 
brought  up  on  account  of  his  offence  which  he  committed  for 
the  sake  of  Pai-baka-kamen,  the  Major-domo,  with  the  women 
in  stirring  up  malefactors  to  do  wrong  to  their  Lord.  He  was 
presented  before  the  great  Magistrates  of  the  seat  of  judgment. 
They  investigated  his  crimes  and  found  the  verdict,  that  he  had 
committed  them  and  that  his  crimes  had  been  consummated 
by  him.  The  Magistrates  who  judged  him  caused  his  punish- 
ment to  be  inflicted  upon  him. 

4  The  great  criminal  Pa-an-auk,  royal  Overseer  of  the  royal 
.  .  .  ^  of  the  Pa-chent  on  service.  He  was  brought  up  for 
having  made  one  with  Pai-baka-kamen  and  Mest-su-ra.  He 
was  presented  before  the  great  Magistrates  of  the  seat  of 
judgment.  They  investigated  his  crimes  and  found  the  ver- 
dict, that  he  had  committed  them  and  that  his  crimes  had 
been  consummated  by  him.  The  Magistrates  who  judged  him 
caused  his  punishment  to  be  inflicted  upon  him. 

5  The  great  criminal  Pen-tuauu,  royal  Scribe  of  the  Pa-chent  on 
service.  He  was  brought  up  for  having  made  one  with  Pai- 
baka-kamen  and  Mest-su-ra,  and  the  other  criminal  Overseer 
of  the  royal  ^  and  the  women  of  the  Pa-chent.  He  was  presented 
before  the  great  Magistrates  of  the  seat  of  judgment.  They  in- 
1  Expiated  (?).  2  tj^^  ^^^^  which  occurs  here  is  doubtful. 


Chap.  XXIII,  §  1,  2.]  A   CONSPIRACY   CASE  567 

vestigated  his  crimes  and  found  the  verdict,  that  he  had  com- 
mitted them  and  that  his  crimes  had  been  consummated  by  him. 
The  Magistrates  who  judged  him  caused  his  punishment  to  be 
inflicted  upon  him. 

6  The  great  criminal  Pa-nifu-emta-amen,  Examiner  of  the 
Pa-chent  on  service.  He  was  brought  up  for  giving  ear  to  the 
conversation  held  by  the  men  conspiring  with  the  women  of 
the  Pa-chent  and  not  bringing  it  forward  against  them.  He  was 
presented  before  the  great  Magistrates  of  the  seat  of  judgment. 
They  investigated  his  crimes  and  found  the  verdict,  that  he  had 
committed  them  and  that  his  crimes  had  been  consummated 
by  him.  The  Magistrates  who  judged  him  caused  his  punish- 
ment to  be  inflicted  upon  him. 

7  The  great  criminal  Karpusa,  Examiner  of  the  Pa-chent  on 
service.  He  was  brought  up  for  giving  ear  to  the  conversation 
held  by  the  men  conspiring  with  the  women  of  the  Pa-chent 
and  not  bringing  it  forward  against  them.  He  was  presented 
before  the  great  Magistrates  of  the  seat  of  judgment.  They  in- 
vestigated his  crimes  and  found  the  verdict,  that  he  had  com- 
mitted them  and  that  his  crimes  had  been  consummated  by  him. 
The  Magistrates  who  judged  him  caused  his  punishment  to  be 
inflicted  upon  him. 

8  The  great  criminal  Cha-em-apt,  Examiner  of  the  Pa-chent 
on  service.  He  was  brought  up  for  giving  ear  to  the  conversa- 
tion held  by  the  men  conspiring  with  the  women  of  the  Pa-chent 
and  not  bringing  it  forward  against  them.  He  w^as  presented 
before  the  great  Magistrates  of  the  seat  of  judgment.  They  in- 
vestigated his  crimes  and  found  the  verdict,  that  he  had  com- 
mitted them  and  that  his  crimes  had  been  consummated  by  him. 
The  Magistrates  who  judged  him  caused  his  punishment  to  be 
inflicted  upon  him. 

9  The  great  criminal  Cha-em-maa-en-re,  Examiner  of  the 
Pa-chent  on  service.  He  was  brought  up  for  giving  ear  to  the 
conversation  held  by  the  men  conspiring  with  the  women  of 
the  Pa-chent  and  not  bringing  it  forward  against  them.  He 
was  presented  before  the  great  Magistrates  of  the  seat  of  judg- 
ment. They  investigated  his  crimes  and  found  the  verdict, 
that  he  committed  them  and  that  his  crimes  had  been  consum- 
mated by  him.  The  Magistrates  who  judged  him  caused  his 
punishment  to  be  inflicted  upon  him. 

10  The  great  criminal  Seti-em-pa-Tahuti,  Examiner  of  the  Pa- 
chent  on  service.     He  was  brought  up  for  giving  ear  to  the  con- 


568  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 

versation  held  by  the  men  conspiring  with  the  women  of  the 
Pa-chent  and  not  bringing  it  forward  against  them.  He  was 
presented  before  the  great  Magistrates  of  the  seat  of  judgment. 
They  investigated  his  crimes  and  found  the  verdict,  that  he  had 
committed  them  and  that  his  crimes  had  been  consummated 
by  him.  The  Magistrates  who  judged  him  caused  his  punish- 
ment to  be  inflicted  upon  him. 

11  The  great  criminal  Seti-em-pa-Amen,  Examiner  of  the  Pa-chent 
on  service.  He  was  brought  up  for  giving  ear  to  the  conversa- 
tion held  by  the  men  conspiring  with  the  women  of  the  Pa-chent 
and  not  bringing  it  forward  against  them.  He  was  presented 
before  the  great  Magistrates  of  the  seat  of  judgment.  They 
investigated  his  crimes  and  found  the  verdict,  that  he  had  com- 
mitted them  and  that  his  crimes  had  been  consummated  by  him. 
The  Magistrates  who  judged  him  caused  his  punishment  to  be 
inflicted  upon  him. 

12  The  great  criminal  Uarma,  a  Comptroller.  He  was  brought 
up  for  having  given  ear  to  what  was  said  by  the  Major-domo. 
He  turned  away  from  it  but  concealed  it  and  did  not  report 
it.  He  was  presented  before  the  great  Magistrates  of  the  seat 
of  judgment.  They  investigated  his  crimes  and  found  the 
verdict,  that  he  had  committed  them  and  that  his  crimes  had 
been  consummated  by  him.  The  Magistrates  who  judged 
him  caused  his  punishment  to  be  inflicted  upon  him. 

13  The  great  criminal  Ash-hebs-heb,  a  servant  of  Pai-baka- 
KAMEN.  He  was  brought  up  for  having  given  ear  to  what  was 
said  by  Pai-baka-kamen,  he  conversed  with  him,  and  did  not 
report  it.  He  was  presented  before  the  great  Magistrates  of 
the  seat  of  judgment.  They  investigated  his  crimes  and 
found  the  verdict,  that  he  had  committed  them  and  that  his 
crimes  had  been  consummated  by  him.  The  Magistrates  who 
judged  him  caused  his  punishment  to  be  inflicted  upon  him. 

14  The  great  criminal  Pa-Raka,  Comptroller  and  Scribe  of  the 
double  house  of  life.  He  was  brought  up  for  his  offence  which 
he  committed  for  the  sake  of  Pai-baka-kamen,  for  he  heard 
words  from  him  but  did  not  report  them.  He  was  presented 
before  the  great  Magistrates  of  the  seat  of  judgment.  They 
investigated  his  crimes  and  found  the  verdict,  that  he  had  com- 
mitted them  and  that  his  crimes  had  been  consummated  by  him. 
The  Magistrates  who  judged  him  caused  his  punishment  to  be 
inflicted  upon  him. 

15  The    great    criminal    Rebu-inini,    a    Comptroller.     He    was 


Chap.  XXIII,  §1,2.]  A  CONSPIRACY  CASE  569 

brought  up  for  his  offence  which  he  committed  for  the  sake  of 
Pai-baka-kamen  for  he  heard  words  from  him  but  did  not  report 
them.  He  was  presented  before  the  great  Magistrates  of  the 
seat  of  judgment.  They  investigated  his  crimes  and  found 
the  verdict,  that  he  had  committed  them  and  that  his  crimes 
had  been  consummated  by  him.  The  Magistrates  who  judged 
him  caused  his  punishment  to  be  inflicted  upon  him. 

Page  5 

1  The  wives  of  the  men  of  the  gates  of  the  Pa-chent  when  in 
company  with  the  men  had  communication  in  words.  They 
were  brought  up  before  the  high  Magistrates  of  the  seat  of 
justice  who  found  them  guilty  and  caused  their  chastisements 
to  be  inflicted  upon  them. 

2  The  great  criminal  Pai-ari-selma,  Overseer  of  the  Treasury. 
He  was  brought  up  for  his  offence  which  he  committed  for  the 
sake  of  the  great  criminal  Pen-hui-ban  ;  he  had  made  one  with 
him  in  inciting  malefactors  to  do  wrong  to  their  Lord.  He  was 
presented  before  the  great  Magistrates  of  the  seat  of  judgment. 
They  investigated  his  crimes  and  found  the  verdict,  that  he  had 
committed  them  and  that  his  crimes  had  been  consummated 
by  him.  The  Magistrates  who  judged  him  caused  his  punish- 
ment to  be  inflicted  upon  him. 

3  The  great  criminal  Ban-em-uset,  Captain  of  archers  of 
Ethiopia.  He  was  brought  up  on  account  of  the  message  which 
had  been  sent  by  his  sister  of  the  Pa-chent  on  service,  to  this 
effect,  Incite  the  men  to  commit  crime,  and  do  thou  thyself  come 
to  do  wrong  to  thy  Lord.  He  was  presented  before  Katenten, 
Barmahar,  Paari-sennu,  Tahuti-rech-nefer,  who  judged 
him  and  found  him  guilty  and  caused  his  chastisement  to  be  in- 
flicted on  him. 

4  Persons  brought  up  for  their  crimes  and  offences  which  fhey 
committed  for, the  sake  of  Pai-baka-kamen,  Pai-as,  and  Pen- 
TA-URA.  They  were  presented  before  the  high  Magistrates 
who  judged  them  and  found  them  guilty  and  disposed  of  them 
in  the  place  of  judgment.  They  suffered  death,^  no  expiation 
was  made  for  them. 

5  The  great  criminal  Pai-as,  Captain  of  archers;  the  great 
criminal  Messui,  Scribe  of  the  Double  House  of  Life ;  the  great 
criminal  Pa-ra-kamen-ef,  superior  Officer;   the  great  criminal 

1  On  this  expression  see  the  last  paragraph  of  the  introductory  note. 


570  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV, 

I-ARi,  Overseer  of  the  libations  of  Sechet;  the  great  criminal 
Neb-tefau,  Comptroller ;  the  great  criminal  Shat-mester,  Scribe 
of  the  Double  House  of  Life. 

6  Persons  brought  up  for  their  crimes  to  the  seat  of  justice  before 
Katenten,  Barmahar,  Pa-ari-sennu,  Tahuti-rech-nefer 
(Merti-us-Amen),  who  judged  them  for  their  crimes,  and  found 
them  guilty  and  disposed  of  them  at  the  place.  They  suffered 
death. 

7  Pen-ta-ura,  who  is  also  called  by  another  name.  He  was 
brought  up  on  account  of  his  offence  which  he  committed  for 
the  sake  of  Tata  his  mother,  when  she  communicated  words 
with  the  women  of  the  Pa-chent  with  intent  of  doing  wrong  to 
his  Lord.  He  was  presented  before  the  Comptrollers  that  he 
might  be  judged,  who  found  him  guilty  and  disposed  of  him 
at  his  place.     He  suffered  death. 

8  The  great  criminal  Han-uten-Amen,  a  Comptroller.  He 
was  brought  up  on  account  of  the  crimes  of  the  women  of  the 
Pa-chent.  He  was  on  the  premises  and  heard,  but  did  not 
make  a  report.  He  was  presented  before  the  Comptrollers  to 
be  judged,  who  found  him  guilty,  and  disposed  of  him  at  his 
place.     He  suffered  death. 

9  The  great  criminal  Amen-chau,  Tennu^  of  the  Pa-chent  on 
service.  He  was  brought  up  on  account  of  the  crimes  of  the 
women  of  the  Pa-chent.  He  was  on  the  premises  and  heard  but 
did  not  make  a  report.  He  was  presented  before  the  Comp- 
trollers to  be  judged,  who  found  him  guilty  and  disposed  of 
him  at  his  place.     He  suffered  death. 

10  The  great  criminal  Pa-ariu,  Scribe  of  the  royal  [?]  of  the 
Pa-chent  on  service.  He  was  brought  up  on  account  of  the 
crimes  of  the  women  of  the  Pa-chent.  He  was  on  the  premises 
and  heard  but  did  not  make  a  report.  He  was  presented 
be/ore  the  Comptrollers  to  be  judged,  who  found  him  guilty 
and  disposed  of  him  at  his  place.    He  suffered  death. 


Page  6 

1  Persons  who  suffered  punishment  by  amputation  of  noses  and 
ears  in  consequence  of  the  failure  of  the  favourable  evidence 
which  they  have  given.  The  women  departed,  and  arrived  at 
the  place  where  they  now  are  and  where  they  make  a  beer- 

1  Tennu  is  the  title  of  an  officer  of  exalted  rank. 


Chap.  XXIII,  §  1,  3.]  SPOLIATION  OF  TOMBS  571 

house  ^  together  with  Pa-as,  and  their  crimes  are  done  away 
with. 

2  The  great  criminal  Paibasat,  a  Comptroller.  The  chastise- 
ment was  inflicted  upon  him,  and  he  was  disposed  of.  He 
suffered  death. 

3  The  great  criminal  Mai,  a  Scribe  of  the  Library. 

4  The  great  criminal  Taia-nechtuta,  Officer  of  the  Auait. 

5  The  great  criminal  Nanai,  Superior  of  the  Se-ashtu. 

6  A  person  one  with  them  who  prevaricated  with  very  evil  words. 
He  was  disposed  of,  and  no  expiation  was  made  for  him. 

7  The  great  criminal  Hora,  Fanbearer  of  the  Auait. 

NO.  3.    SPOLIATION   OF  TOMBS  ^ 

This  papyrus  was  purchased  in  the  year  1857  from  Dr.  Abbott  of 
Cairo,  by  the  Trustees  of  the  British  Museum,  and  in  1860  a  facsimile, 
preceded  by  an  excellent  preface  from  the  pen  of  Dr.  S.  Birch,  was  pub- 
lished by  them  in  the  "  Select  Papyrus  in  the  Hieratic  Character."  This  emi- 
nent Egyptologist  had  already  in  1859  drawn  the  attention  of  the  scientific 
public  to  this  ancient  document  by  giving  an  account  of  it  in  the  "  Revue 
Archeologique  "  (Tome  XVI.  p.  257),  under  the  title  of  "  Le  Papyrus  Abbott, 
par  S.  Birch,  traduction  de  F.  Chabas."  Since  that  time,  and  nearly  si- 
multaneously, two  complete  French  translations  have  been  publisl^d  — 
one  by  M.  F.  Chabas,  Chalon-sur-Saone,  1870,  in  his  "  Melanges  Egyp- 
tologiques"  (troisieme  serie.  Tome  I.) ;  the  other  by  M.  G.  Maspero,  Paris, 
1871,  entitled  "Une  enquete  judiciaire  a  Thebes  au  temps  de  la  XX. 
.Dynastie."  Both  translations  are  accompanied  by  an  analysis,  and  the 
latter  by  a  transcription  of  the  hieratic  text  and  an  interlinear  version. 

The  MS.  consists  of  seven  pages  of  clear  and  bold  handwriting,  regular 
at  the  commencement,  but  less  carefully  written  as  it  approaches  the  end, 
until  it  becomes  almost  illegible  on  the  endorsement  which  is  not  repro- 
duced here,  as  it  merely  contains  a  list  of  names  of  no  special  importance 
for  the  present  publication. 

This  valuable  document  throws  considerable  light  upon  the  adminis- 
tration of  justice  in  ancient  Egypt,  and  shows  the  entire  course  of  proceed- 
ings in  a  criminal  case  under  the  reign  of  Rameses  IX.  The  style  is  clear 
and  the  action  goes  on  in  a  connected  and  regular  way.  But  what  makes 
the  sense  of  the  translation  somewhat  ambiguous  on  a  first  reading  is  the 
difficulty  of  rendering  it  literally,  and  at  the  same  time  in  good  English, 
as  the  sentences  are  very  long  and  frequently  interrupted  by  explanatory 
phrases.     [The  time  of  Rameses  IX  is  circa  1150  b.c] 

Page  I 

1  (The  16th  year,)^  the  18th  day  of  Athyr,  in  the  reign  of  the 
King  of  Upper  and  Lower  Egypt,  Lord  of  the  two  countries, 
Nefer-ka-ra  Sotep-en-ra,  the  son  of  the  Sun,  Lord  of  Diadems, 

1  Sic.  This  was  their  occupation  in  penal  servitude.  Instead  of 
heket,  "beer,"  M.  t)everia  reads  heker  which  he  translates  "torture." 

*  [Translated  by  P.  J.  De  Horrack.  Reprinted,  by  permission,  from 
"Records  of  the  Past,"  Vol.  xii,  p.  101  seq.,  Samuel  Bagster  and  Sons, 
London.] 

'  The  words  enclosed  in  brackets,  thus,  (     ),  replace  lacunae. 


572  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

2  (Ramessu  Kha-em-uas)  Merer-Amen,  Beloved  of  Amen-Ra, 
the  King  of  the  gods,  and  of  Har-em-akhu,  who  gives  life 
eternally  and  for  ever. 

3  (On  that  day  were  sent)  the  Examiners  of  the  august  necrop- 
olis, the  Scribe  of  the  Nomarch  and  the  Scribe  of  the  Overseer 
of  the  King's  treasury, 

4  (to  the  monuments)  and  chapels  of  the  royal  ancestors,  and 
to  the  sepulchres  and  resting-places  of  the  chanters 

5  (and  mourners)  which  are  in  the  West-quarter  of  the  city,  by 
the  Nomarch  Kha-em-uas 

the  royal  Controller,  Nes-su-amen,  Scribe  of  the  King, 

6  (the  Major-domo)  of  the  abode  of  the  divine  adorer  of  Amen-ra, 
the  King  of  the  gods, 

the  royal  Controller  Nefer-ka-ra-em-pa-Amen,  Reporter  of 
the  King, 

7  (in  order  to  investigate)  concerning  what  the  thieves  had  done 
in  the  West-quarter  of  the  city,  on  which  subject  the  Com- 
mandant, Chief  of  the  Police,  Pa-au-aa,  of  the  very  august 
Necropolis. 

8  (of  millions  of  years,  of  the)  King,  which  is  in  the  West  of 
Thebes,  had  reported  to  the  Nomarch,  the  Magistrates  and  the 
Examiners  of  the  King. 

9  (Functionaries)  who  went  on  that  day  with  the  Commandant, 
Chief  of  the  Police,  Pa-au-aa,  of  the  necropolis ; 

10  the  .  .   .1  Bek-en-ur-enru,  of  the  palace, 

11  .  .   .1  of  the  necropolis, 

12  .  .   .1  of  the  palace, 

13  .  .   .1  of  the  palace, 

10^^®  the  Chief  of  the  Police,  Mentu-Khopesh-ef,  of  the  palace, 

IP'®  the  Scribe  Pa-a-en-bauk-hor,  of  the  Nomarch, 

12^'®  the  great  Scribe  of  the  Store-house,   Pai-nefer,    of    the 

Overseer  of  the  Treasury, 
13^'®  the  Prophet  Pa-an-khau,  of  the  temple  of  Amen-hotep, 

14  the  Prophet  Sar-amen,  of  the  temple  of  Amen,  of  the  cellars, 

15  the  Police-oflScers  of  the  necropolis,  who  were  with  them. 


Page  II 

1  Monuments,  chapels  arid  sepulchres  examined  on  that  day  by 
the  Examiners : 

*  LacunsB. 


Chap.  XXIII,  §1,3.]  SPOLIATION  OF  TOMBS  573 

2  The  eternal  horizon  ^  of  King  Sar-ka,  son  of  the  Sun,  Amen- 
HOTEP,  which  is  120  cubits 

3  deep  in  its  principal  chamber,^  the  long  corridor  belonging  to  it 
being  at  the  north  of  the  temple  of  Amen-hotep 

4  of  the  vineyard,  of  which  the  Commandant  Pa-sar,  of  the  city, 
had  made  a  report  to  the  Nomarch  Kha-em-uas, 

5  the  royal  Controller  Nes-su-amen,  Scribe  of  the  King,  the 
Major-domo  of  the  abode  of  the  divine  adorer  of  Amen-Ra,  the 
King  of  the  gods, 

6  and  the  royal  Controller  Nefer-ka-ra-em-pa-Amen,  Re- 
porter of  the  King,  (all)  high  Magistrates,  saying  : 

7  "The  thieves  have  violated  it."  Examined  on  that  day,  it  was 
found  intact  by  the  Examiners. 

8  The  monument  of  King  Sa-ra  An-aa,  which  is  at  the  North 
of  the  temple  of  Amen-hotep  of  the  terrace. 

9  This  tomb  is  injured  on  the  surface  opposite  the  spot  where 
the  tablet  is  placed; 

10  on  the  tablet  is  the  image  of  the  King,  in  a  standing  position, 
having  between  his  feet  his  greyhound 

11  named  Behhuka.  Examined  on  that  day,  it  was  found  in 
good  condition. 

12  The  monument  of  King  Nub-kheper-ra,  son  of  the  Sun, 
Antuf,  w^as  found  to  have  been 

13  pierced  by  the  hands  of  the  thieves,  who  had  made  a  hole  of 
two  cubits  and  a  half  in  its  surrounding  wall,  and  (a  hole  of) 
one  cubit 

14  in  the  great  outside-chamber  of  the  sepulchre  of  the  Chief 
of  the  transportation  of  the  offerings,  AuRi,  of  Pa-Amen, 

15  which  (tomb)  is  in  ruins.  It  was  in  good  condition,  the  thieves 
not  having  been  able  to  penetrate  into  it. 

16  The  monument  of  King  Ra-Sekhem-em-apu-ma,  son  of  Sun, 
Antuf-aa.     It  was  found 

17  to  have  been  pierced  by  the  hands  of  the  thieves  at  the  spot 
where  the  tablet  of  the  monument  is  fixed. 

18  Examined  on  that  day,  it  was  found  entire,  the  thieves  not 
having  been  able  to  penetrate  into  it. 

Page  III 

1  The  monument  of  King  Ra-sekhem-seshet-taui,  son  of  the 
Sun,  Sebak-em-sau-ef. 

*  The  tomb.  2  The  one  in  which  the  mummy  is  deposited. 


574  ANCIENT  AND   PRIMITIVE    LEGAL  TRANSACTIONS        [Pabt  IV. 

2  It  was  found  that  the  thieves  had  violated  it  by  undermining 
the  chamber  of  the  perfections  ^  of  the 

3  monument,  from  the  great  exterior  chamber  of  the  sepulchre 
of  the  Overseer  of  the  granaries,  Neb-Amen,  of  the  King  Men- 

KHEPER-RA  (ThOTMES  III.). 

4  The  place  of  sepulture  of  the  King  was  found  to  be  void  of  its 
occupant;  so  was  the  place  of  sepulture  of  the  principal  royal 
spouse, 

5  NuB-KHA-s,  his  royal  wife ;  the  thieves  had  laid  hands  on  them. 
The  Nomarch, 

6  the  Magistrates  and  Controllers  investigated  (the  matter)  and 
found  the  thieves  having  laid  hands  on  them,  a  fact, 

7  as  far  as  the  King  and  his  royal  spouse  were  concerned. 

8  The  monument  of  King  Ra-sekenen,  son  of  the  Sun,  Ta-aa. 
Examined  on  that  day 

9  by  the  Examiners,  it  was  found  intact. 

10  The  monument  of  King  Ra-sekenen,  son  of  the  Sun,  Ta-aa-aa, 
being  King  Ta-aa  Second. 

11  Examined  on  that  day  by  the  Examiners,  it  was  found  intact. 

12  The  monument  of  King  Uat-kheper-ra,   son  of  the  Sun, 
Ka-mes.     Examined  on  that  day,  it  was  (found)  uninjured. 

13  The  monument  of  King  Ahmes  Sa-pa-ar.     Examined  and 
found  intact. 

14  The  monument  of  King  Neb-kher-ra,  son  of  the  Sun,  Mentu- 
HOTEP,  which  is  in  the  (region  of)  Sar ;  ^  it  was  intact. 

15  Total  of  the  monuments  of  the  royal  ancestors  examined  on 
that  day  by  the  Examiners ; 

16  found  intact,  9  monuments ;  found  violated,  1 ;  total  10. 

17  The  sepulchres  of  the  pallakides  of  the   abode  of   the  divine 
adorer  of  Amen-ra,  the  King  of  the  gods ;  found  intact,  2 ; 

18  found  violated  by  the  thieves,  2  ;  total,  4. 

Page  IV 

1  Sepulchres  and  chapels  in  which  repose  the  chanters  and 
mourners,  the  women  and  men  of  the  country, 

2  in  the  West-quarter  of  the  city.  It  was  found  that  the  thieves 
had  violated  them  all,  that  they  had  torn  their  occupants 

3  away  from  their  coffins  and  cases,  had  thrown  them  into  the 
dust  and  had  stolen  all  the  funeral  objects  which 

1  One  of  the  names  of  the  principal  chamber  of  a  tomb, 

2  A  particular  quarter  of  the  necropolis  of  Thebes. 


Chap.  XXIII,  §1,3.]  SPOLIATION   OF  TOMBS  575 

4  had  been  given  to  them,  as  well  as  the  gold  and  silver  and  the 
*      ornaments  which  were  in  their  coffins. 

5  The  Commandant,  Chief  of  the  Police,  Pa-au-aa,  of  the  very 
august  necropolis,  as  well  as  the  Chiefs  of  the  Police  and  the 
Police-officers, 

6  the  Examiners  of  the  necropolis,  the  Scribe  of  the  Nomarch, 
the  Scribe  of  the  Overseer  of  the  Treasury,  who  were  with  them, 
made  a  report  about  (these  tombs)  to 

7  the  Nomarch  Kha-em-uas,  the  royal  Controller  Nes-su- 
AMEN,  Scribe  of  the  King,  the  Major-domo  of  the  abode  of  the 
divine  adorer  of 

8  Amen-ra,  the  King  of  the  gods,  and  the  royal  Controller 
Nefer-ka-ra-em-pa-Amen,  Reporter  of  the  King,  (all)  high 
Magistrates. 

9  The  Commandant  of  the  West-quarter,  Chief  of  the  Police, 
Pa-au-aa,  of  the  necropolis,  placed  the  names  of  the  thieves  in 
writing 

10  before  the  Nomarch.  The  Magistrates  and  Controllers 
arrested  them  and  put  them  into  prison ;  they  cross-examined 
them  and  reported  the  state  of  things. 

11  The  16th  year,  the  19th  day  of  Athyr.  This  was  the  day  on 
which  started,  in  order  to  examine  the  great  places  ^  of  the  royal 
children,  the  royal  wives 

12  and  the  royal  mothers,  which  are  in  the  abode  of  the  perfected, ^ 
the  Nomarch  Kha-em-uas,  the  royal  Controller  Nes-su-amen, 
Scribe  of  the  King, 

13  after  having  received  the  declaration  of  the  worker  in  metal,^ 
Pai-Khari,  son  of  Kharui,  born  of  Mai-sherau,  of  the  West- 
quarter  of  the  city,  a  man  belonging  to  the  servants 

14  of  the  temple  of  User-ma-ra  Meri-Amen  (Rameses  III.)  in 
Pa- Amen, .  which  (temple)  is  under  the  direction  of  the  First 
Prophet  of  Amen-Ra,  the  King  of  the  gods,  Amen-hotep. 
This  man,  who  was  found  on  the  spot, 

15  was  arrested,  he  having  been  (one)  of  three  temple  servants 
who  were  near  the  sepulchres,  at  the  time  when  the  Nomarch 
Ra-neb-ma-nekht  made 

16  his  investigation  in  the  year  xiv. ;  he  said  :  "  I  was  in  the  tomb 
of  the  royal  spouse  Isis  of  the  King  User-ma-ra  Meri-amen 
(Rameses  III.) ;  I  took  away  some 

1  The  tombs. 

2  Tombs  of  the  royal  family. 

3  Literally,  after  having  been  spoken  to  by  the  worker  in  metal. 


576  ■  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

17  objects  and  I  squandered  them."  When  the  Nomarch  and  the 
Controller  had  the  worker  in  metal  brought  before  them  at  the 

Page  V 

1  sepulchres,  he  was  blindfolded  as  a  man  to  be  carefully  watched ; 
his  sight  was  restored  when  he  arrived  at  the  spot,  and  the 
Magistrates 

2  said  to  him  :  *' Walk  before  us  to  the  tomb  of  which  you  said  : 
I  took  away  some  objects  from  it."  The  worker  in  metal  walked 
before  the  Magistrates 

3  to  a  reserve-tomb  of  the  royal  children  of  King  User-ma-ra 
SoTEP-EN-RA  (Rameses  II.),  the  great  god;  nobody  had  been 
interred  therein  and  it  had  been  left  open, 

4  as  well  as  the  resting-place  of  the  workman  Amen-eman,  son 
of  Hui,  of  the  necropolis,  also  situated  there.  And  he  said : 
"These  are  the  tombs  where  I  have  been." 

5  The  Magistrates  submitted  the  worker  in  metal  to  a  complete 
cross-examination  in  the  interior  of  the  Great  Valley.     It  was 

6  found  that  he  was  unacquainted  with  any  place  there,  excepting 
the  two  on  which  he  had  put  his  hand.  He  pronounced  an  oath 
by  the  sovereign  Lord,  striking  his  nose 

7  and  his  ears,  and  with  both  hands  upon  a  rod  said :  "  I  do  not 
know  any  place  within  the  (funeral)  abodes,  with  the  exception 
of  the  tomb  which  is  open  and 

8  the  resting-place  on  which  your  hand  is  placed."  The  Magis- 
trates examined  the  tombs  and  the  great  places  which  are  the 
abode  of 

9  the  perfected,  where  repose  the  royal  children,  the  royal  wives, 
the  royal  ancestors,  the  good  fathers  and  mothers  of  the  King. 

10  They  were  found  in  good  condition.  The  high  Magistrates 
despatched  the  Examiners,  the  overseers,  the  workmen  of  the 
necropolis,  the  Chiefs 

11  of  the  Police,  the  Police-officers,  and  all  the  servants  of  the 
necropolis  of  the  West-quarter  of  the  city,  with  a  grand  verdict 
(of  Not  Guilty  f)  as  far  as  the  city. 

12  The  16th  year,  the  19th  day  of  Athyr.  On  that  day,  at  the  time 
of  evening,  near  the  temple  of  Ptah,  Lord  of  Thebes,  arrived  the 
royal  Controller 

13  Nes-su-amen,  Scribe  of  the  King  and  the  Commandant 
Pa-sar,  of  the  city.  They  met  the  Chief  of  the  workmen, 
User-khopesh,  the  Scribe  Amen-nekhtu 


Chap.  XXIII,  §1,3.]  SPOLIATION   OF  TOMBS  577 

14  and  the  workman  Amen-hotepu,  of  the  necropolis.  The  Com- 
mandant of  the  city  spoke  to  the  men  of  the  necropoHs  in  the 
presence  of  the  Controller  of  the  King 

15  as  follows :  "The  statement  which  you  have  made  this  day  is 
not  an  authentic  statement.     You  will  have  to  suffer  for  what 

16  you  have  done."  Thus  he  spoke  to  them.  He  pronounced 
an  oath  by  the  sovereign  Lord,  in  presence  of  the  Controller 
of  the  King,  and  said  :  "  The  Scribe  Hora-sherau,  son  of  Amen- 

NEKHTU, 

17  of  the  necropolis,  from  the  interior  of  the  Khena,^  and  the 
Scribe  Pai-besa,  of  the  necropolis,  have  made  me  five  revelations 
of  sayings  for  which  you  are  accountable,  well  worthy  of  death ; 

18  now  I  shall  place  a  report  on  this  subject  before  the  King,  my 
master,  that  the  King's  men  may  be  sent  to  destroy  you  all." 
So  spoke  he. 

19  The  16th  year,  the  20th  day  of  Athyr.  Copy  of  the  writing 
which  the  Commandant  of  the  West-quarter  of  the  city.  Chief 
of  the  Police,  Pa-au-aa,  of  the  necropolis,  placed  before  the 
Nomarch, 

20  relative  to  the  words  which  the  Commandant  Pa-sar,  of  the 
city,  spoke  to  the  men  of  the  necropolis,  in  presence  of  the  Con- 
troller of  the  King  and  the  Scribe  Pai-netem,  of  the  Overseer  of 
the  Treasury. 

21  The  Commandant,  Pa-au-aa,  of  the  West-quarter  of  the  city, 
said :  The  royal  Controller,  Nes-su-amen,  Scribe  of  the  King, 
found  himself  in  company  with  the  Commandant,  Pa-sar, 

22  of  the  city.  He  was  discoursing  with  the  men  of  the  necropolis, 
near  the  temple  of  Ptah,  Lord  of  Thebes.  And  the  Comman- 
dant of  the  city  said  to  the  men 

Page  VI 

1  of  the  necropolis :  "Why  were  you  mirthful  on  my  account  at 
the  door  of  my  house  ?  I  am  the  Commandant  who  makes  the 
reports 

2  to  the  Prince.  Come !  be  mirthful  in  the  place  where  you 
dwell.  When  it  was  examined,  2/ow  found  it  in  good  condition, 
the  violated  (tomb)  of 

3  Ra-sekhem-seshet-taui,  son  of  the  Sun,  Sebek-em-sau-ef 

and  NuB-KHA-s,  his  only  royal  spouse.     By  the  great  Prince !" 

And 

^  The  buildings  pertaining  to  the  residence  of  the  King  (according  to 
M.  Chabas). 


578  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

4  he  pronounced  ten  oaths  by  the  worth  of  Amen-ra,  the  King 
of  the  gods,  the  great  god,  whose  statues  were  placed  in  his 
sanctuary  this  day. 

5  Then,  the  workman  User-khopesh,  who  is  under  the  authority 
of  the  chief  workman,  Retu-em-maut,  of  the  necropoHs,  spoke 
as  follows  :   "  All  the  kings  and  their 

6  royal  spouses,  royal  mothers  and  royal  children,  who  repose 
in  the  august  necropolis,  as  well  as  those  who  repose  in  the  abode 
of  the  perfected,  are  in  good  condition ; 

7  they  are  protected  and  cared  for  through  all  eternity;  the 
excellent  administration  of  the  King,  their  child,  watches  and 
inspects  them 

8  thoroughly. '^  The  Commandant  of  the  city  said  to  him : 
"You  use  marvellous  language."  But  the  words  were  not  in- 
significant ones,  those  spoken  by  the 

9  Commandant  of  the  city.  Again  the  Commandant  of  the  city 
told  the  words  for  a  second  time,  saying :  "  The  Scribe  Hora- 
sherau,  son  of  Amen-nekhtu,  of  the  necropolis,  of  the  interior 
of 

10  The  Khena  (came  .  .  .  )  towards  the  place  where  I  was,  and 
made  me  three  revelations  of  very  important  sayings, 

11  which  my  Scribe  and  the  Scribe  of  the  two  districts  of  the  city 
wrote  down.  Now  the  Scribe  Pai-besa,  of  the  necropolis, 
made  me 

12  two  other  revelations,  total,  five.  They  also  wrote  them  down. 
Concerning  them  silence  cannot  be  kept ;  Woe !  They  are 
crimes  worthy  of  the  hatchet, 

13  (and  that  the  criminals)  be  placed  on  the  bed  of  torture  and 
submitted  to  all  sorts  of  chastisement  on  account  of  them.  But 
I  shall  send  a  report  on  this  subject  before  the  King,  my  master, 

14  that  the  King's  men  may  be  despatched  to  destroy  you." 
Thus  spoke  to  them  the  Commandant  of  the  city,  and  he  pro- 
nounced ten  oaths,  saying : 

15  "Thus  shall  I  do."  I  heard  of  the  words  which  the  Com- 
mandant of  the  city  said  to  the  men  of  the  august  necropolis 
of  millions  of  years,  of  the 

16  King,  in  the  West  of  Thebes,  and  I  make  a  report  of  them  before 
my  master,  as  it  would  be  a  crime  for  a  man  like  me 

17  to  hear  of  words  and  conceal  them.  However,  I  have  not  been 
able  to  get  at  the  highly  important  words  of  which  thus  said  the 
Commandant  of  the 

18  city:    "The  Scribes  of  the  interior  of  the  necropolis,  who 


Chap.  XXIII,  §  1,  3.]  SPOLIATION   OF  TOMBS  579 

stayed  amongst  the  men  (of  the  necropolis)  told  them  to  me." 
Alas !  I 

19  did  not  reach  them.^  I  make  a  report  before  my  master  on 
the  subject.  Let  my  master  bring  forward  those  who  got  at  the 
words  of  which 

20  the  Commandant  of  the  city  said  :  "The  Scribes  of  the  necrop- 
olis told  them  to  me ;  I  will  send  a  message  on  the  subject  be- 
fore the  King."     Thus  spoke  he.     It  is  a  crime 

21  for  the  two  Scribes  of  the  necropolis  to  have  sought  out  the 
Commandant  of  the  city,  in  order  to  make  a  report  to  him,  when 
their  fathers  had  not  made  him  any, 

22  but  brought  in  their  statement  to  the  Nomarch,  when  he  was 
in  the  South.  But  when  he  was  in  the  North,  the  Police- 
officers,  attendants  of 

23  his  Majesty,  of  the  necropolis,  started  for  the  place  where  the 
Nomarch  was,  with  their  memoranda.  I  have  procured  evi- 
dence in  the  16th  year,  the  20th  day  of  Athyr, 

24  concerning  the  words  which  had  been  heard  from  (the  mouth 
of)  the  Commandant  of  the  city.  I  place  them  in  writing  before 
my  master,  that  may  have  brought  forward  those  who  reached 
them,  immediately  the  next  morning. 


Page  VII 

1  The  16th  year,  the  21st  day  of  Athyr.  On  that  day,  at  the 
great  assembly  of  the  city,  near  the  two  tablets  of  Amen,  at  the 
entrance  of  the  court  of  Amen,  at  the  door  of  the  adoration 

2  of  the  Rekhi ;  ^  Magistrates  who  were  sitting  in  the  great 
assembly  of  the  city  on  this  day  : 

3  The  Nomarch  Kha-em-uas,  the  First  Prophet  of  Amen-Ra, 
King  of  the  gods,  Amen-hotep,  the  Prophet  of  Amen-Ra 
King  of  the  gods,  the  Scribe  Nas-su-amen,  of  the  temple  of 
millions  of  years, 

4  Of  the  King  of  Upper  and  Lower  Egypt,  Nefer-ka-ar  Sotep- 
EN-RA  (R AMESES  IX.),  the  royal  Controller  Nas-su-amen,  Scribe 
of  the  King,  the  Major-domo  of  the  abode  of  the  divine  adorer  of 
Amen-Ra,  the  King  of  the  gods, 

5  the  royal  Controller  Nefer-ka-ra-em-pa-amen,  Reporter  of 
the  King,  the  Captain  Hora,  of  (the  cavalry),  the  Fan-bearer 

HORA, 

1  Literally,  my  feet  did  not  reach  them. 

2  The  intellectual  part  of  society. 


580  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

6  of  the  Marine,  the  Commandant  Pa-sar,  of  the  city.  Then 
the  Nomarch  Kha-em-uas  had  brought  forward  the  worker 
in  metal  Pai-kari,  son  of  Kharui, 

7  the  worker  in  metal  Tari,  son  of  Kha-em-apt,  the  worker  in 
metal  Pa-kamen,  son  of  Tari,  of  the  temple  of  User-ma-ra 
Meri-Amen  (Rameses  III.)  which  is  under  the  authority  of  the 
First  Prophet  of  Amen. 

8  The  Nomarch  said  to  the  high  Magistrates  of  the  grand 
assembly  of  the  city :  "  The  Commandant  of  the  city  said  some 
words  to  the 

9  Examiners  and  workmen  of  the  necropolis,  in  the  16th  year, 
the  19th  day  of  Athyr,  in  presence  of  the  royal  Controller 
Nes-su-amen,  Scribe  of  the  King, 

10  and  slandered  concerning  the  great  places  which  are  in  the 
abode  of  the  perfected.  Now  I,  the  Nomarch  of  the  country, 
was  there 

11  with  the  royal  Controller  Nes-su-amen,  Scribe  of  the  King. 
We  examined  the  places  of  which  the  Commandant  of  the 
city  said :  '  They  have  been  penetrated  by  the  workers  in 
metal 

12  of  the  temple  of  Ra-user-ma  Meri-Amen.'  We  found  them 
intact,  discovering  everything  he  had  said  to  be  false.  But 
behold ! 

13  the  workers  in  metal  are  standing  before  you.  Let  them  tell 
all  that  has  happened.'.'  They  deliberated.  It  was  found  that 
the  men 

14  did  not  know  any  place  in  the  abode  of  the  perfected,  about 
which  the  Commandant  of  the  city  had  spoken.  It  was  he  who 
had  been  false  in  this. 

15  The  high  Magistrates  accorded  the  breath  of  life  to  the  workers 
in  metal,  of  the  temple  of  User-ma-ra  Meri-Amen,  in  Pa-Amen, 
which  (temple)  is  under  the  authority  of  the  First  Prophet 
of  Amen-Ra,  the  King  of  the  gods, 

16  Amen-hotep.  On  this  day  a  paper  was  signed  for  them,  and 
they  went  to  the  house  of  the  Scribe  of  the  Nomarch. 


Chap.  XXIII,  §2,  1.]      DEFENSE   OF  A  MAGISTRATE.  581 


Section  2.     BABYLONIAN 

NO.  1.    THE    DEFENSE    OF    A    MAGISTRATE    FALSELY   AC- 
CUSED i 

This  tablet,  marked  K  31,  is  preserved  in  the  British  Museum,  and 
has  been  published  in  the  "Inscriptions  of  Western  Asia,"  Vol.  IV.,  plate 
53.  It  is  very  different  both  in  style  and  subject  from  anything  that  has 
been  hitherto  translated.  It  is  a  letter  to  the  King  from  a  magistrate 
named  Nebo-balatzu-ikbi  protesting  his  entire  innocence  of  the  charges 
brought  against  him.  He  seems  in  great  trouble,  the  letter  passes  from, 
one  subject  to  another  almost  without  warning ;  the  diction  is  rapid  and 
passionate,  and  there  can  be  no  doubt,  I  think,  that  we  have  here  the 
original  letter  and  not  a  copy  made  from  it  afterwards. 

The  chief  charges  against  him  appear  to  have  been  two.  First,  dis- 
loyalty to  the  King  (perhaps  treason) ;  and  secondly,  complicity  in  the 
carrying  off  a  young  lady  of  noble  birth ;  which  crime  he  utterly  denies 
all  knowledge  of,  and  professes  his  readiness,  if  the  King  is  not  satisfied, 
to  submit  to  any  judicial  investigation  that  the  King  may  desire. 

This  translation,  together  with  its  accompanying  text,  was  first  published 
in  the  "Transactions  of  the  Society  of  Biblical  Archaeology,"  Vol.  VI., 
p.  289.     [The  translator  gives  no  date  for  this  inscription.] 

1  To  the  King  my  Lord 

2  thy  servant  Nebo-balatzu-ikbi  (sends  greeting). 

3  May  Nebo  and  Marduk  to  the  King  my  Lord  be  propitious ! 

4  and  may  the  god  .   .   .  who  is  the  head  of  heaven  and  earth 

5  prolong  thy  hfe  !     Have  I  not  once  and  twice 

6  besought  the  King  my  Lord  ?  yet  no  one  has  sent  to  me 

7  news  from  Babylonia.^    Is  the  countenance  of  the  King  turned 
away  from  me  ? 

8  and  have  I  committed  some  crime  against  the  King  my  Lord. 

9  No !  I  have  not  committed  any  crime  against  the  King  my 
Lord. 

10  When  trustworthy  witnesses  had  assembled  together, 

11  and  I  had  declared  my  fidelity  to  the  King  before  a  Public 
Notary, 

12  a  certain  man,  my  accuser,  entered  the  Palace 

13  boldly ;  a  criminal  charge  against  me  he  raised  :  fetters 

14  on  my  hands  he  placed,  and  said  : 

15  In  the  presence  of  all  these  people  who  are  here  assembled, 

16  as  prisoner  of  my  lord  the  King,  I  arrest  you  !  ^    All  that  day 

^  [Translated  by  the  late  H.  Fox  Talbot,  F.R.S.  Reprinted,  by  per- 
mission, from  "Records  of  the  Past,"  Vol.  xi,  p.  99  seq.,  Samuel  Bagster 
and  Sons,  London.] 

2  It  is  very  uncertain  whether  Babylonia  be  intended  here,  but  rather 
Akkad,  a  district  of  Babylonia  of  which  the  exact  limits  are  not  known.  It 
was  so  called  from  its  inhabitants,  the  Akkadai  or  "  Highlanders." 

^  This  is  a  very  interesting  account  of  the  arrest  of  an  accused,  and  of 
the  subsequent  severe  treatment  under  confinement  of  which  he  complains. 
The  irregular  manner  in  which  justice  was  administered  in  ancient  times, 


582  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

17  I  lay  flat  on  my  face  upon  my  bed. 

18  The  soldiers  who  passed  by  my  bed 

19  out  of  ill-will  no  one  gave  me  food  for  my  mouth ; 

20  hunger  and  emptiness  fell  upon  me. 

21  When  evening  came,  I  rose  up,  and  I  muffled  my  fetters, 

22  and  I  passed  by  in  front  of  the  guard 

23  whom  the  King  my  Lord  had  set  in  that  place  to  guard  it. 

24  How  I  was  liberated  I  will  now  tell  the  King. 

25  Some  soldiers,  strangers  to  me,  came  in  thither, 

26  who  broke  off  from  me  the  King's  fetters, 

27  and  with  idle  words  against  the  King 

28  spoke  (the  King  will  understand  me) 

29  For  two  days,  for  money,  to  sustain  my  life 

30  they  brought  me  of  their  food,  for  my  portion,  and  for  my 
nourishment, 

31  and  they  spoke  words  of  disrespect 

32  against  the  King  my  Lord,  that  are  not  decorous  that  the  King 
my  Lord  should  know  them; 

33  Their  full  speech  I  conceal,  for  it  were  not  meet  for  the  eyes  of 
the  King. 

34  (Sarludaru  will  tell  me  the  will  of  the  King).^ 

35  Moreover,  a  certain  villain  of  the  land  of  Sumir,^  who  never 

36  broke  my  bread,^  this  man  seduced  the  daughter  of  Babilai,* 

37  who  is  the  son  of  one  of  the  Priests  of  the  Sun. 

38  To  the  King  my  Lord  I  wrote  word  of  the  crime,  and,  one  at  a 
time, 

as  now,  in  the  East,  may  be  seen  by  comparing  this  account  with  that 
given  by  another  tablet  (a  translation  of  which  will  be  found  in  "Records 
of  the  Past,"  Vol.  XI,  "Assyrian  Report  Tablets,"  p.  76),  in  which  three 
men,  two  of  them  holding  posts  which  were  considered  to  be  of  great 
importance,  kept  back  four  out  of  seven  talents  of  the  gold  which  was  to 
have  been  used  for  the  images  of  some  former  kings,  and  an  image  of  the 
mother  of  the  then  reigning  monarch.  No  punishment  is  mentioned, 
the  writer  only  asking  the  king  to  command  that  the  gold  should  be 
returned  as  pay  to  the  army. 

1  That  is,  if  the  king  wish  to  know  what  those  words  of  disrespect  were, 
would  he  communicate  with  me  through  Sarludaru. 

2  Rather  "Akkad." 

^  /.  e.,  was  my  guest  or  friend. 

*  Babilai,  "the  Babylonian."  Many  names  of  this  kind  occur  in  the 
inscriptions,  such  as:  Assurai,  "the  Assurite;"  Ninai,  "the  Ninevite;" 
ArhaHlai,  "he  of  Arbela;"  Khaltsuai,  "the  inhabitant  of  the  fortress." 
These  names  do  not  seem  to  have  been  used  because  the  writers  did  not 
know  the  real  names  of  the  persons  spoken  of,  as  there  is  a  number  of 
them  in  a  list  of  proper  names  printed  in  the  second  volume  of  the  "  Cunei- 
form Inscriptions  of  Western  Asia."  They  seem  to  have  been  given  by 
parents  to  their  children  from  motives  of  civic  pride,  for  we  find  such 
names  as:  Mannu-ki-ArbaHli,  "What  is  like  Arbela?"  Mannu-ki-Ninay 
"What  is  like  Nineveh?" 


Chap.  XXIII,  §  2,  2.]        A   BABYLONIAN   LAWSUIT  583 

39  the  Sukkal  ^  and  the  Martinu  ^  took  it  by  turns  to  adjudicate, 

40  for  the  King  on  purpose  had  mingled  them  so,  to  judge  my 
household : 

41  they  sent  writings  in  multitudes,  letter  after  letter. 

42  When  Sarludaru  to  the  office  of  High  Treasurer. 

43  had  been  appointed,  the  Martinu  demanded  judgment, 

44  and  having  thrown  the  men  of  my  household  into  prison 

45  he  gave  them  to  Sarludaru.     When  he  came 

46  to  judge,  he  said  :  Fear  not,  my  man  ! 

47  In  vain  thou  fearest.     And  I  till  the  time  of  the  evening  meal 

48  continued  talking  with  him.     Meanwhile,  the  girl 

49  had  been  carried  off ;  but  how  she  left  the  house 

50  I  saw  not ;  I  heard  not ;  and  I  knew  not  who 

51  carried  her  off,  not  in  the  least !  for  in  the  crowd  of  servants 

52  of  the  King  my  Lord,  with  whom  she  had  been  talking,  she  had 
remained  behind. 

53  O  Marduk  !  whoever  has  concealed  her  flight,  I  have  as  yet 
obtained  no  news  of  him, 

54  but,  O  Lord  of  Kings !  I  will  urge  with  haste  the  search  for 
her  present  dwelling-place. 

55  The  Martinu  ^  has  annulled  the  criminal  accusation 

56  but  that  the  King  (himself)  should  judge  all  my  family 

57  from  my  heart  I  desire ! 

NO.  2.    A  BABYLONIAN  LAWSUIT  ^ 

Having  worked  for  more  than  five-and-twenty  years  at  the  Babylonian 
and  Assyrian  deeds  of  contract  and  legal  decisions,  and  having  explained 
the  documents  relating  to  these  subjects  which  have  been  discovered  in 
Mesopotamia,  I  am  now  able  to  state  that  the  meaning  of  these  difficult 
texts  is  at  length  fairly  well  understood  by  us.  The  simplest  explanation 
is  that  which  is  the  most  difficult  to  obtain,  and  I  have  no  doubt  that  the 
translations  and  interpretations  I  offer  will  appear  to  many  scholars  so 
easy  and  conclusive  as  to  make  them  assume  that  any  one  might  have 
discovered  them  at  the  outset.  Fortunately,  however,  not  only  the  trans- 
lations of  other  scholars,  but  my  own  imperfect  ones  as  well,  have  been 
published,  and  will  thus  convince  younger  students  of  the  immense  diffi- 
culty there  is  in  arriving  at  results  which  seem  so  evident. 

The  first  texts  which  I  have  selected  contain  certain  contracts  and  legal 
decisions  relating  indubitably  to  captive  Jews  who  had  been  carried  to 
Babylon  after  the  destruction  of  Jerusalem.  One  of  the  most  interesting- 
of  them  is  a  lawsuit  commenced  by  a  Jewish  slave  named  Barachiel  in 
order  to  recover  his  original  status.  A  copy  of  the  text  has  been  pub- 
lished by  Father  Strassmaier  in  the  "Transactions  of  the  Oriental  Con- 
gress," at  Leyden,  No.  42. 

^  Or,  expert.  2  Qj.^  law-officer.  ^  Or,  law-officer. 

*  [Translated  by  J.  Oppert.  Reprinted,  by  permission,  from  "Ancient 
Records  of  the  Past,"  N.  S.  (Vol.  i,  p.  154  seq.),  published  by  Samuel 
Bagster  and  Sons,  London.] 


584  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

My  translation  of  it,  which  will  appear  in  the  "Transactions  of  the 
Oriental  Congress"  at  Vienna,  has  been  amended  in  one  or  two  points. 
The  translations  offered  by  Dr.  V.  Revillout  and  a  young  Assyriologist, 
Dr.  Peiser,  are  very  imperfect,  Dr.  Revillout  having  entirely  misunder- 
stood the  nature  of  the  suit  referred  to,  and  having  fallen  into  several  gram- 
matical errors,  while  Dr.  Peiser's  rendering  is  not  less  unacceptable. 

The  ease  was  as  follows :  —  Barachiel,  who  bears  the  same  name  as 
the  father  of  Elihu  in  the  Book  of  Job  (xxxii.  2,  6),  had  been  the  property 
of  a  wealthy  person  named  Akhi-nuri,  who  had  sold  him  to  a  widow  of 
the  name  of  Gaga,  about  570  b.c.  He  remained  in  the  house  of  this  lady 
as  a  slave,  with  the  power  of  liberating  himself  by  paying  a  sum  equal  to 
his  peculium,  or  private  property  which  he  had  been  allowed  to  acquire, 
like  a  slave  in  ancient  Rome ;  but  it  seems  that  he  was  never  fortunate 
enough  to  be  able  to  afford  the  sum  of  money  required.  He  remained  with 
Gag£l  twenty-one  years,  and  was  considered  the  res  or  property  of  the 
house,  and  as  such  was  handed  over  in  pledge,  was  restored,  and  finally 
became  the  dowry  of  Nubta  ("Bee"),  the  daughter  of  Gaga.  Nubta 
gave  him  to  her  son  and  husband  in  exchange  for  a  house  and  some  slaves. 
After  the  death  of  the  two  ladies  he  was  sold  to  the  wealthy  publican 
Itti-Marduk-baladh,  from  whose  house  he  escaped  twice.  Taken  the 
second  time,  he  instituted  an  action  in  order  that  he  might  be  recognized 
as  a  free-born  citizen,  of  the  family  of  Bel-rimanni ;  and  to  prove  that  he 
was  of  noble  origin  he  pretended  that  he  had  performed  the  matrimonial 
solemnities  at  the  marriage  of  his  master's  daughter  Qudasu  with  a  cer- 
tain Samas-mudammiq.  Such  a  performance,  doubtless,  implied  that 
the  officiating  priest  was  of  free  birth,  and  that  no  slave  or  freedman  was 
qualified  to  take  part  in  it.  He  declared,  "I  am  a  mar-bant,''  or  "de- 
scendant of  a  hanii"  literally  a  "generator,"  or  "ancestor,"  one  of  those 
semi-mythical  heroes  who  gave  their  names  to  the  noble  families  of 
Babylon.  "I  belong,"  he  went  on  to  say,  "to  the  family  of  Bel-rimanni," 
who  in  other  texts  is  called  a  high-priest.  The  case  was  brought  before 
a  court  of  justice,  and  the  royal  judges  asked  Barachiel  to  prove  that  he 
was  of  free  birth.  This  actio  prcejudicialis  de  ingenuitate  was  urged  for 
and  against,  and  eventually  Barachiel  was  obliged  to  retract  his  former 
statements.  He  was  unable  to  rebut  the  evidence  alleged  against  him, 
and  though  it  is  probable  that  the  two  married  persons  whose  "hands  he 
had  joined"  were  dead,  other  witnesses  came  forward  who  proved  that  he 
was  a  slave  with  the  power  of  purchasing  his  freedom. 

The  exact  date  at  which  the  judgment  was  delivered  is  not  quite 
certain,  but  it  must  be  later  than  the  seventh  year  of  Nabonidus,  when 
the  father  Itti-Marduk-baladh  was  still  alive. 

I  will  now  proceed  to  make  some  further  remarks  on  the  details  of  the 
case,  as  it  is  very  interesting,  and  offers  some  useful  hints  as  to  the  legal 
procedure  of  the  Babylonians. 

The  name  of  Bariki-ili  or  Barachiel  is  evidently  that  of  a  Jew.  He  is 
called  "a  slave  of  ransom,"  that  is  to  say,  not  a  slave  who  has  already  pur- 
chased his  freedom,  since  in  that  case  he  would  have  been  free,  but  a  slave 
who  was  allowed  by  special  laws  to  employ  his  private  fortune  in  the  work 
of  liberating  himself.  He  professes  to  have  been  the  avil  taslisu  or  ' '  joiner  " 
of  the  hands  of  bride  and  bridegroom  at  a  wedding  which  must  have 
taken  place  before  the  thirty-fifth  year  of  Nebuchadnezzar's  reign,  when 
he  still  belonged  to  the  house  of  Akhi-nuri,  "the  seller  of  the  slave,"  as 
he  is  called  at  the  end  of  the  text. 

After  the  declaration  of  the  slave,  the  document  is  comparatively  easy 
to  understand.  The  judges,  after  perusing  all  the  evidence,  do  not  find 
a,ny  proofs  that  Barachiel  was  a  man  of  free  birth,  and  accordingly  say- 
to  him :  "Prove  to  us  that  you  are  the  descendant  of  a  (noble)  ancestor." 
Thereupon  Barachiel  confesses  that  he  is  not  free-born,  but  has  twice 
run  away  from  the  house  of  his  master;  as,  however,  the  act  was  seen 
by  many  people  he  was  afraid,  and  said,  "I  am  the  son  of  a  (noble)  an- 
cestor." "But  I  am  not  free-born,"  he  continues,  and  then  gives  an 
account  of  the  events  of  his  life. 

The  words  mar-banut  in  line  16  signify  "condition  of  being  a  free-born 


Chap.  XXIII,  §  2,  2.]        A   BABYLONIAN   LAWSUIT  585 

citizen,"  and  not  "letter  of  clientship,"  as  Dr.  Peiser  supposes.  The 
expression  "letter  of  citizenship"  {dippi  mar-hanut)  occurs  several  times, 
and  signifies  the  warrant  given  by  a  master  to  his  emancipated  slave. 
"Non-citizenship"  was  the  fourth  fact  guaranteed  by  the  seller  of  a  slave 
to  the  purchaser,  the  other  three  being:  (1)  that  the  slave  should  not 
rebel  or  run  away ;  if  he  returned  to  his  former  master  he  was  to  be  sent 
back ;  (2)  that  no  claim  should  lie  against  the  validity  of  the  sale  on  ac- 
count of  technical  or  other  errors ;  and  (3)  that  the  purchaser  should  be 
secured  against  any  claim  made  upon  the  services  of  a  slave  by  a  royal 
officer. 

Barachiel  adds  that  after  the  death  of  the  two  ladies  Gag§,  and  Nubta, 
he  was  sold  for  money  to  Itti-Marduk-baladh,  of  the  Egibi  family,  thus 
becoming  a  servus  redimendus  argento,  a  slave  who  could  be  ransomed 
with  money,  and  that  he  awaits  the  sentence  of  the  court. 

The  judges  decided  that  Barachiel  should  be  restored  to  his  original 
status,  and  added  that  it  was  in  the  uzuz  (or  usuz)  of  the  two  married 
persons  Samas-mudammiq  and  Qudasu  that  the  judgment  was  pro- 
nounced. This  may  signify  "absence,"  the  two  having  died  during  the 
interval  of  more  than  twenty  years  which  had  elapsed  since  the  marriage. 
It  is  probable  that  Barachiel  had  invented  the  story  of  his  taking  part  in 
the  wedding  because  he  thought  that  its  falsity  could  not  be  detected.  If, 
liowever,  the  word  is  equivalent  to  the  expression  ina  du-zu,  the  texts  from 
Sippara  would  go  to  show  that  it  must  mean  "in  the  presence  of." 

It  may  be  remarked  that  not  a  word  is  said  about  "a  deed  of  slavery," 
which  w^as  certainly  not  given  to  a  slave  in  order  to  prove  his  own  servile 
condition  as  a  vindex  lihertatis,  as  Dr.  Revillout  seems  to  imagine. 

The  only  penalty  imposed  upon  the  slave  is  his  restoration  to  his 
ancient  condition;  penalties  were  decreed  against  those  who  wished  to 
annul  a  contract,  not  against  those  who  pretended  to  be  free  citizens. 
In  this  respect  the  Babylonian  law  was  more  humane  than  the  Roman. 
This  is  the  more  surprising,  since  it  cannot  be  denied  that  severe  penalties 
were  at  times  inflicted.  The  Micheaux-stones,  for  example,  inscribed  in 
the  twelfth  century  before  our  era,  threaten  the  transgressors  of  a  contract 
and  those  who  annul  their  covenants  with  the  curses  of  the  gods,  each  of 
whom  would  inflict  a  special  punishment.  The  old  Jew  escaped  with  the 
failure  of  his  attempt  to  recover  his  undeserved  loss  of  liberty ;  perhaps 
the  court  took  into  serious  consideration  his  fidelity  to  his  former  master, 
who  had  esteemed  him  to  be  worth  not  only  a  house  but  other  slaves  as 
well. 

1 .  Barachiel  is  a  slave  of  ransom  ^  belonging  to  Gaga  the  daughter 

of 

2.  .  .  .  whom  in  the  35th  year  of    Nebuchadnezzar,  king  of 

Babylon,^ 

3.  [from  Akhi-]nuri,  the  son  of  Nabu-nadin-akh,  for  the  third  of 

a  mina  and  8  shekels 

4.  she  had  bought.     Recently^  he  has  instituted  an  action, 

saying  thus:   I  am  the  son  of  a  (noble)  ancestor,  of  the 
family  ^  of  Bel-rimanni, 

5.  who  have  joined  the  hands  (in  matrimony)  of  Samas-mudam- 

miq the  son  of  Nabu-nadin-akh 

1  For  the  meaning  of  this  expression  see  above. 

2  B.C.  570. 

3  Ana  eninni,  not  a  proper  name  as  Dr.  Revillout  supposes ! 

^  Read  lu  zir.  Several  distinguished  persons  were  called  Bel-rimanni, 
among  others  a  priest  of  the  Sun-god. 


586  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 

6.  and  the  woman  Qudasu  the  daughter  of  Akhi-nuri,  even  L 

In  the  presence  of 

7.  the  high-priest/  the  nobles  and  the  judges  of  Nabonidus  king 

of  Babylon 

8.  they  pleaded  the  case  and  listened  to  their  arguments  in  regard 

to  the  obligation  of  servitude 

9.  of  Barachiel.     From  the  35th  year  of  Nebuchadnezzar  king  of 

Babylon 

10.  to  the  7th  year  of  Nabonidus  king  of  Babylon,^  he  had  been 

sold  for  money,  had  been  put 

11.  in  pledge,  (and)  as  the  dowry  of  Nubta  the  daughter 

12.  of  Gaga  had  been  given.     Afterwards  Nubta  had  alienated 

him  by  a  sealed  contract ;  ^ 

13.  in  exchange  for  a  house  and  slaves  to  Zamama-nadin 

14.  her  son  and  Idina  her  husband  had  given  him.     They  read 

(the  evidence)  and 

15.  said  thus  to  Barachiel :  Thou  hast  brought  an  action  and  said  : 

The  son  of  a  (noble)  ancestor 

16.  am   I.     Prove  to   us  thy   (noble)   ancestry.     Barachiel   his 

former  statement 

17.  retracted,  saying :  Twice  have  I  run  aw^ay  from  the  house  of 

my  master,  but  many  people  (were  present), 

18.  and  I  was  seen.     I  was  afraid  and  said  (accordingly)  that  I  am 

the  son  of  a  (noble)  ancestor. 

19.  My  citizenship  exists  not ;   I  am  the  slave  of  ransom  of  Gaga. 

20.  Nubta  her  daughter  received  me  as   (her)  dowry;    Nubta 

21.  alienated  me  by  a  sealed  contract,  and  to  Zamama-nadin  her 

son  and  Idina  her  husband 

22.  gave  me  in  exchange;    and  after  the  death  of  Gaga  (and) 

Nubta, 

23.  to  Itti-Marduk-baladh  the  son  of  Nabu-akhe-iddin  of  the 

family  of  Egibi,  for  silver 

24.  I  [was  sold].     I  am  a  slave.     Go  now,  [pronounce 'sentence] 

about  me. 

25.  [The    high-priest],    the    nobles   and    the   judges    heard    the 

evidence 

26.  [and]  restored  [Barachiel]  to  his  condition  as  slave  of  ransom, 

notwithstanding  the  absence  of  Samas-mudammiq 

27.  [the  son  of  Nabu-nadin-akh]  and  Qudasu  the  daughter  of 

Akhi-nuri,  the  seller 

1  Sangu.  ^  b.c.  549. 

3  The  text  does  not  seem  to  me  to  have  been  correctly  copied  here. 


Chap.  XXIII,  §3.]  ORATION  AGAINST  ARISTOCRATES  587 

28.  [of  the  slave].     For  the  registration  of  this  [decision]  IVIusezib 

the  [priest] 

29.  [and]  .  .  .  Nergal-alche-iddin  the  judges 

30.  ...  of  the  family  of  Epis-el,  in  the  city  of  the  palace  of  the 

king  of  Babylon,  the  17th  day  of 

31.  the  month  Marchesvan  ^  [the  7th?  year]  of  Nabonidus  king  of 

Babylon. 

Section  3.     GRECIAN 
THE  ORATION  AGAINST  ARISTOCRATES  2 

The  Argument 

Aristocrates  was  the  mover  of  a  decree  which  the  Athenians  passed 
in  favour  of  Charidemus  of  Oreus,  b.c.  352.  The  exact  terms  of  the  decree 
have  not  come  down  to  us.  Its  professed  objects  were,  to  reward  Chari- 
demus for  his  past  services  to  Athens,  and  at  the  same  time  to  attach  him 
more  firmly  to  her  interests  and  secure  his  assistance  for  the  future.  It 
therefore  contained  (among  other  clauses)  one  making  his  person  invio- 
lable, and  declaring,  "that  whosoever  killed  him  might  lawfully  be  arrested 
in  any  place  within  the  limits  of  the  Athenian  confederacy,  and  that  any 
state  or  individual  refusing  to  give  up  such  person,  or  attempting  to  rescue 
him,  should  be  excluded  from  all  the  benefit  of  Athenian  connexion." 

For  this  decree,  as  being  impolitic  and  injurious  to  his  country,  as  well 
as  contrary  to  the  letter  and  spirit  of  her  laws,  Aristocrates  was  indicted 
by  one  Euthycles,  for  whom  Demosthenes  composed  the  present  speech, 
which  was  spoken  on  the  trial.  We  have  no  further  knowledge  of  either 
the  prosecutor  or  the  defendant  than  what  we  obtain  from  the  oration 
of  Demosthenes.  They  were  perhaps  obscure  persons  put  forward  by 
the  different  political  parties,  one  by  the  supporters  of  Charidemus,  the 
other  by  his  adversaries.  It  appears,  however  that  Euthycles  had  been 
employed  on  some  naval  command  in  the  Hellespont,  and  he  may  there- 
fore have  been  conversant  with  Thracian  politics. 


Let  none  of  you,  O  Athenians,  imagine  that  I  am  here  from 
motives  of  personal  enmity  to  accuse  the  defendant  Aristocrates, 
or  that  upon  the  discovery  of  some  small  and  trifling  error  I  am 
rushing  eagerly  into  a  quarrel.  Unless  I  am  mistaken  in  my 
views  and  calculations,  I  am  exerting  myself  for  no  other  object 
than  that  you  may  hold  the  Chersonese  in  safety,  and  may  not 
again  by  trickery  be  deprived  of  it.  If  you  wish  therefore  to 
understand  these  matters  correctly,  and  to  give  a  just  and  legal 
decision  upon  the  indictment,  you  should  not  only  attend  to  the 
words  of  the  decree,  but  consider  their  probable  consequences. 
Could  you  have  seen  through  the  artifice  upon  the  first  hearing, 

^  October. 

2  [From  "The  Orations  of  Demosthenes,"  translated  with  notes  by 
Charles  Rann  Kennedy,  5  vols.  (vol.  Ill),  London,  Geo.  Bell  &  Sons. 
Demosthenes  was  born  about  385  b.c.  and  died  322  b.c] 


588  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

you  would  perhaps  not  have  been  deceived  at  all :  but  as  this  is 
one  of  the  frauds  practised  by  certain  people,  to  move  and  frame 
decrees  in  such  a  way  that  you  may  suspect  nothing  and  be  thrown 
off  your  guard,  you  must  not  be  greatly  surprised,  if  we  can  show 
this  decree  to  be  so  framed,  that,  while  it  appears  to  give  a  personal 
protection  to  Charidemus,  it  deprives  the  commonwealth  of  her 
really  sure  and  effectual  means  of  protecting  the  Chersonese. 
You  ought  indeed,  O  Athenians,  to  give  me  your  attention,  and 
to  hear  what  I  say  with  favour.  For  when,  without  being  one  of 
your  eternal  speakers  or  one  of  the  politicians  in  whom  you  have 
confidence,  I  tell  you  that  I  can  prove  such  a  dangerous  thing  to 
have  been  attempted ;  if  you  will  support  me  to  the  utmost  of  your 
power  and  lend  me  a  willing  ear,  you  will  not  only  secure  your- 
selves against  this  danger,  but  encourage  any  of  us  who  believe 
we  can  render  service  to  the  state.  We  shall  believe  so,  if  we  see  it 
is  not  difficult  to  obtain  an  audience  with  you.  Many  now  being 
afraid  of  this,  not  clever  speakers  perhaps,  but  better  men  than 
those  who  are,  it  never  enters  their  heads  to  consider  any  public 
question.  I  myself  -t-  by  all  the  Gods,  I  assure  you  —  should 
have  shrunk  from  preferring  this  indictment,  only  I  thought  it 
would  be  highly  disgraceful  to  keep  quiet  and  hold  my  tongue  now, 
when  I  see  people  contriving  a  measure  injurious  to  Athens  —  I 
that  formerly,  when  I  sailed  as  commander  to  the  Hellespont, 
spoke  out  and  accused  certain  persons  whom  I  believed  to  have 
done  you  wrong. 

I  am  aware  that  some  people  consider  Charidemus  to  be  a 
benefactor  of  the  republic.  I  think  however  that,  if  I  can  give 
the  explanations  which  I  propose,  and  tell  you  what  I  know  him 
to  have  done,  I  shall  prove  not  only  that  he  is  no  benefactor,  but 
that  he  is  the  most  malignant  enemy,  and  has  got  a  very  different 
character  from  what  he  deserves.  If  this,  men  of  Athens,  had 
been  the  gravest  offence  of  Aristocrates,  to  have  made  provision 
by  decree  for  such  a  person  as  I  will  prove  Charidemus  to  be, 
giving  him  special  and  extra-legal  retribution  for  any  injury  that 
he  may  suffer,  I  should  have  addressed  you  upon  that  point  im- 
mediately, to  convince  you  that  he  is  far  from  deserving  to  obtain 
such  a  decree.  There  is  however  a  still  greater  injustice  effected 
by  the  decree,  which  you  should  first  be  informed  of  and  on  your 
guard  against. 

I  must  first  of  all  state  and  explain,  what  it  is  that  has  enabled 
you  to  hold  the  Chersonese  securely  :  by  such  information  you  will 
also  clearly  see  the  wrong  which  has  been  done.     The  cause,  men 


Chap.  XXIII,  §  3.]  ORATION  AGAINST  ARISTOCRATES  589 

of  Athens,  is  this  —  that  upon  the  death  of  Cotys  thpee  princes 
instead  of  one  succeeded  to  the  kingdom  of  Thrace,  namely, 
Berisades,  Amadocus,  and  Cersobleptes :  consequently  they  have 
been  rivals  to  each  other,  but  have  caressed  and  courted  you. 
Certain  people,  O  Athenians,  wishing  to  put  an  end  to  this,  to 
destroy  the  other  princes,  and  to  put  the  whole  monarchy  into  the 
hands  of  Cersobleptes,  contrive  to  obtain  this  resolution  of  Council ; 
by  the  terms  of  which  indeed  they  were  far  from  appearing  to 
have  any  such  design,  though  in  fact  they  were  using  all  their 
efforts  to  forward  it,  as  I  shall  prove.  For  when  Berisades,  one 
of  the  princes,  died,  and  Cersobleptes,  violating  his  oaths  and  the 
treaty  which  he  made  with  you,  levied  war  upon  Amadocus  and 
the  sons  of  Berisades,  it  was  evident  that  Athenodorus  would 
assist  the  sons  of  Berisades,  and  that  Simon  and  Bianor  would 
assist  Amadocus :  for  the  former  is  connected  by  marriage  with 
Berisades,  as  the  latter  are  with  Amadocus.  They  looked  therefore 
for  the  best  means  of  compelling  those  generals  to  keep  quiet,  of 
isolating  the  rival  princes,  and  thus  enabling  Charidemus,  who  was 
striving  to  win  the  monarchy  for  Cersobleptes,  to  get  everything 
firmly  into  his  power.  The  best  way  was,  first  for  your  decree  to 
be  obtained,  making  any  one  who  killed  him  liable  to  arrest; 
secondly,  for  Charidemus  to  be  elected  general  by  you.  For 
Simon  and  Bianor,  who  had  been  made  citizens,  and  who,  inde- 
pendently of  that,  were  devoted  to  you,  would  not  be  in  a  hurry 
to  take  the  field  against  your  general;  and  Athenodorus,  who 
was  a  citizen  by  birth,  would  never  think  of  such  a  thing,  and  never 
expose  himself  to  a  charge  under  the  decree,  which  would  be  sure 
to  be  advanced  against  them,  if  anything  happened  to  Charidemus. 
By  such  means,  the  princes  being  destitute  of  support,  and  im- 
punity being  secured  for  themselves,  they  hoped  easily  to  expel 
them  and  get  possession  of  the  kingdom. 

That  such  was  their  expectation  and  such  their  contrivance, 
the  facts  are  sufficient  to  prove.  For  at  the  very  time  when  they 
were  themselves  commencing  war,  there  came  as  ambassador 
from  them  to  you  this  Aristomachus  of  Alopece,  who  in  his  address 
to  the  assembly,  besides  praising  Cersobleptes  and  Charidemus 
in  general  terms,  and  declaring  how  friendly  their  feelings  w^ere  to 
you,  said  that  Charidemus  was  the  only  person  able  to  recover 
Amphipolis  for  the  commonwealth,  and  advised  you  to  elect  him 
general.  This  resolution  of  Council  had  already  been  concerted 
and  prepared  by  them,  so  that,  in  case  you  should  be  prevailed 
upon  through  the  hopes  and  promises  which  Aristomachus  held 


590  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 

out,  the  assembly  might  immediately  ratify  it,  and  nothing  should 
stand  in  the  way.  Let  me  ask ;  how  could  any  people  have  more 
artfully  or  cunningly  devised  a  plot  for  the  expulsion  of  the  rival 
princes  and  the  subjugation  of  the  whole  empire  under  one  whose 
cause  they  espoused,  than  by  so  contriving  matters,  that  the 
persons  who  would  be  likely  to  assist  the  two  should  be  intimidated 
and  shrink  from  the  vexatious  proceedings  which  they  must 
expect  to  be  taken  against  them  by  virtue  of  this  decree,  while 
he  that  was  trying  to  get  the  kingdom  for  one  and  working  for 
everything  opposed  to  your  interests  had  an  ample  licence  given 
him  to  effect  his  purposes  securely  ?  And  not  only  from  this  is  it 
evident  that  the  resolution  of  Council  was  moved  for  the  reasons 
which  I  state,  but  the  decree  itself  affords  a  pretty  strong  piece  of 
evidence.  After  the  words  "if  any  one  shall  kill  Charidemus,'' 
omitting  to  state  what  Charidemus  must  be  doing  at  the  time, 
whether  acting  for  your  advantage  or  otherwise,  he  has  immediately 
added,  "  that  he  may  be  apprehended  in  the  territory  of  your 
allies."  Now  no  man  who  is  alike  our  enemy  and  his,  will  ever 
come  to  our  allies,  whether  he  has  killed  Charidemus  or  not ;  so 
that  this  penal  clause  has  not  been  framed  against  such  a  party. 
One  that  feared  the  decree,  and  was  careful  not  to  incur  our  certain 
enmity,  would  be  a  person  friendly  to  us  and  opposed  to  him  in  the 
event  of  his  attempting  anything  against  us.  Such  persons  are 
Athenodorus,  Simon,  Bianor,  the  Thracian  princes,  all  who  would 
wish  to  oblige  you  by  checking  Charidemus  in  any  hostile  attempt. 
The  object  then  for  which  the  resolution  of  Council  was  moved, 
that  the  people  under  delusion  might  confirm  it,  and  the  reason 
why  we  have  preferred  this  indictment,  wishing  to  prevent  such  a 
result,  I  have  told  you,  men  of  Athens.  Perhaps,  as  I  have  under- 
taken to  prove  three  things,  first,  that  the  decree  has  been  moved  in 
violation  of  the  laws,  secondly,  that  it  is  disadvantageous  to  the 
commonwealth,  thirdly,  that  the  party  for  whom  it  has  been  drawn 
is  unworthy  to  obtain  such  honours,  it  is  right  that  I  should  give 
to  you  my  hearers  the  option,  what  you  would  like  to  hear  first, 
what  second,  and  what  last.  Consider  then  which  you  would  like, 
that  I  may  begin  with  that.  Do  you  wish  me  to  begin  with  the 
breach  of  law  ?  ^  Then  to  that  I  will  address  myself.  But  I  have 
one  thing  to  request,  to  entreat  of  you  all  —  and  it  is  reasonable,  I 
am  sure  —  Don't  let  any  of  you,  men  of  Athens,  out  of  a  jealous 
feeling  because  he  has  been  deceived  in  Charidemus  and  thinks 
him  a  benefactor,  listen  with  less  favour  to  my  discourse  about  the 
^  Here  we  are  to  suppose  the  jury  gave  token  of  assent. 


Chap.  XXIII,  §  3.]  ORATION  AGAINST  ARISTOCRATES  591 

laws :  don't  let  him  on  that  account  deprive  himself  of  the  power 
to  vote  conscientiously,  or  me  of  the  right  to  open  my  whole  case  to 
you  as  I  please :  but  let  him  give  me  his  attention  thus  —  and 
see  how  fairly  I  will  put  it.  When  I  am  speaking  about  the 
laws,  irrespective  of  the  person  in  whose  favour  the  decree  has 
been  moved  and  of  his  character,  look  whether  it  has  been  moved 
contrary  to  the  laws  or  in  accordance  with  them,  and  look  at 
nothing  else.  When  I  bring  his  deeds  home  to  him,  and  explain 
the  manner  in  which  he  has  deceived  you,  look  at  the  facts,  whether 
I  state  them  truly  or  falsely.  When  I  discuss  whether  or  no  it  is 
expedient  for  the  commonwealth  to  pass  this  decree,  lay  aside 
everything  else,  and  consider  whether  my  reasoning  upon  the 
question  is  sound  or  unsound.  If  you  listen  to  me  in  this  temper 
of  mind,  you  will  yourselves  more  fully  comprehend  what  is  neces- 
sary, looking  at  each  point  singly,  and  not  trying  a  heap  of  ques- 
tions at  once;  and  I  shall  be  able  to  explain  what  I  want  more 
easily.     Upon  every  point  I  shall  be  brief. 

Now  take  and  read  the  laws  themselves,  that  out  of  their  very 
language  I  may  show  the  illegality  which  has  been  committed. 

One  of  the  Laws  of  Homicide  from  the  Areopagus  : 

"The  Council  of  Areopagus  shall  have  cognizance  of  murder, 
and  wounding  with  malicious  intent,  and  arson,  and  poisoning,  if 
any  one  shall  kill  another  by  giving  poison." 

Stop.  You  have  heard  both  the  law  and  the  decree, ^  men  of 
Athens.  I  will  tell  you  how,  as  it  appears  to  me,  you  will  most 
easily  comprehend  the  arguments  on  the  point  of  illegality.  You 
must  look  what  is  the  position  of  the  man,  in  whose  favour  the 
decree  has  been  moved ;  whether  he  is  an  alien,  or  a  resident  alien, 
or  a  citizen.  If  we  call  him  a  resident  alien,  we  shall  not  be 
speaking  the  truth ;  if  an  alien,  we  shall  not  be  acting  justly ;  for 
the  people's  grant,  by  which  he  has  become  a  citizen,  ought  to  stand 
good.  We  must  treat  him  therefore  in  argument,  it  seems,  as  a 
citizen.  And  only  see  how  fairly  and  equitably  I  will  deal  with  the 
question :  for,  while  I  rank  him  in  that  class  in  which  he  will 
obtain  the  highest  honour,  I  don't  consider  that  privileges,  which 
€ven  we  native  citizens  do  not  enjoy,  ought  in  contempt  of  the 
laws  to  be  accorded  to  him.  What  privileges  do  I  mean  ?  Those 
which  the  defendant  has  inserted  in  his  decree.     It  is  written  in 

^  The  decree  of  Aristocrates,  set  forth  in  the  indictment,  which  was 
read  by  a  clerk  of  the  court  to  the  jury  at  the  commencement  of  the  trial. 


592  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 

the  law,  that  the  Council  shall  have  cognizance  of  murder,  and 
wounding  with  malicious  intent,  and  arson,  and  poisoning,  if  any 
one  shall  kill  another  by  giving  poison.  And  the  legislator  having 
premised,  "if  any  one  shall  kill,"  has  nevertheless  ordered  a  trial, 
before  saying  how  the  author  of  the  deed  is  to  be  punished ;  herein, 
men  of  Athens,  exercising  a  wise  forethought  for  the  religion  of 
the  whole  state.  How  so  ?  It  is  impossible  for  all  of  us  to  know 
who  the  murderer  is.  To  believe  therefore  any  such  charges  with- 
out trial,  he  thought  would  be  monstrous ;  and  he  considered  that, 
since  it  is  we  who  will  have  to  avenge  the  sufferer,  we  must  be 
satisfied  and  convinced  by  proof  that  the  accused  party  is  guilty ; 
for  then  is  it  righteous  to  punish,  when  we  are  acquainted  with  the 
facts,  and  not  before.  Moreover  he  reckoned  that  all  such  expres- 
sions as  "if  one  shall  kill,"  "if  one  shall  commit  sacrilege,"  "if  one 
shall  commit  treason,"  and  the  like,  before  trial  are  terms  of  accusa- 
tion only,  after  trial  and  conviction  they  become  crimes.  With  a 
term  of  accusation  he  thought  it  proper  to  associate  not  punish- 
ment, but  trial.  And  therefore  he  enacted  that,  if  any  man  shall 
kill  another,  the  Council  shall  have  cognizance,  and  did  not  state 
what  he  is  to  suffer  upon  conviction.  Thus  did  the  legislator 
express  himself  :  how  did  the  author  of  the  decree  ?  "  If  any  one 
shall  kill  Charidemus,"  he  says  —  the  misfortune  he  has  described 
in  •the  same  terms  as  the  legislator,  "if  any  one  shall  kill"  —  but  he 
does  not  go  on  in  the  same  manner :  he  has  done  away  with  all 
judicial  hearing,  and  made  the  party  liable  to  immediate  arrest; 
in  contempt  of  the  tribunal  appointed  by  law,  he  has  given  over 
without  trial  to  his  accusers,  to  be  dealt  with  according  to  their 
pleasure,  a  person  whose  guilt  is  not  yet  clear.  And  when  they 
have  taken  him,  it  will  be  lawful  for  them  to  torture  or  to  beat  or 
to  exact  money  from  him.  But  all  these  things  are  by  the  law 
underneath  ^  positively  and  plainly  forbidden  to  be  done  even  to 
convicted  and  declared  murderers.  Read  them  the  words  of  the 
following  law :  — 

The  Law 

"  And  it  shall  be  lawful  to  kill  ^  murderers  in  our  own  territory 
or  to  take  them  into  custody,  as  the  lawgiver  directs  in  the  tablet,^ 

1  The  law  written  under  the  one  last  cited  on  the  board  exhibited  to 
the  jury. 

2  That  is,  "they  might  be  killed,  if  they  resisted  lawful  capture;" 
as  Heraldus  explains  it. 

3  The  laws  of  Solon  were  originally  inscribed  on  wooden  tablets  of  a 
pyramidal  shape,  made  to  turn  on  an  axis.  They  were  at  first  kept  in  the 
Acropolis,  but  afterwards  brought  down  to  the  P^ytaneum. 


Chap.  XXIII,  §  3.]  ORATION  AGAINST  ARISTOCRATES  593 

but  not  to  ill-treat  nor  to  amerce  them,  under  pain  of  having  to  pay 
double  damages.  And  the  Archons  shall  bring  to  trial  such  causes 
as  they  have  cognizance  of  respectively  for  any  one  that  desires 
it :  and  the  court  of  Helisea  shall  decide." 

You  have  heard  the  law,  men  of  Athens.  Look  and  observe, 
how  wisely,  how  piously  the  legislator  has  drawn  it.  Murderers, 
he  says.  In  the  first  place,  by  a  murderer  he  means  one  who  has 
been  found  guilty  by  verdict :  for  no  one  falls  under  that  designa- 
tion, before  he  has  been  convicted  and  found  guilty.  Where  does 
he  show  this  ?  Both  in  the  former  law  and  in  the  present.  In  the 
former,  after  the  clause  "if  any  one  shall  kill,"  he  added  "the 
Council  shall  have  cognizance  :"  in  this,  after  naming  the  murderer, 
he  has  declared  what  he  ought  to  suffer.  Where  the  thing  was 
accusation  only,  he  has  directed  the  trial ;  but  where  the  term  has 
become  properly  applicable  to  a  convict,  he  has  ordained  the  pun- 
ishment. He  must  therefore  be  speaking  of  convicted  parties. 
And  what  says  he  ?  That  it  shall  be  lawful  to  kill  or  to  take  into 
custody.  Does  it  mean,  to  the  captor's  own  house,  or  as  he 
pleases?  No  such  thing.  How  then?  As  is  directed  in  the 
tablet,  he  says.  And  what  Js  that?  What  you  all  know.  The 
Judges  have  authority  to  punish  with  death  those  who  are  in  exile 
for  murder ;  and  you  all  saw  the  person  in  the  assembly  last  year 
carried  off  by  them  to  prison.  It  is  to  them  therefore  that  he 
orders  the  party  to  be  taken.  And  how  does  this  differ  from  taking 
him  to  the  captor's  own  house?  He  that  takes  off  the  offender 
to  the  Judges,  men  of  Athens,  gives  all  power  over  him  to  the  laws ; 
he  that  carries  him  to  his  own  house  gives  the  power  to  himself. 
In  the  former  case  the  punishment  may  be  such  as  the  law  pre- 
scribes ;  in  the  other  case,  such  as  the  captor  pleases :  and  surely 
it  makes  a  vast  difference,  whether  the  law  has  authority  to  inflict 
punishment,  or  whether  an  enemy  has.  "But  not  to  ill-treat 
nor  to  amerce,"  it  says.  What  mean  those  expressions?  By  not 
ill-treating,  a  term  undoubtedly  familiar  to  all,  he  means  not  to 
scourge,  not  to  shackle,  not  to  do  anything  of  that  sort :  and  by  not 
amercing,  not  to  exact  pecuniary  penalties  ;  for  the  ancients  called 
a  pecuniary  penalty  an  amercement.  Thus  has  the  law  defined 
how  a  murderer  and  a  convict  must  be  punished,  and  where, 
naming  the  country  of  the  sufferer;  and  has  positively  declared 
that  it  shall  be  in  no  other  manner  but  that,  and  nowhere  else  but 
there.  The  author  of  the  decree  however  is  far  from  having  defined 
it  thus :  in  fact  he  has  said  quite  the  contrary ;  for  after  writing 
"if  any  one  shall  kill  Charidemus,"  "it  shall  be  lawful,"  he  adds, 


594  ANCIENT  AND   PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

"to  apprehend  him  in  any  place/'  What  mean  you ?  When  the 
laws  do  not  permit  even  convicts  to  be  taken  into  custody  except 
in  our  own  territory,  do  you  allow  a  man  without  trial  to  be  appre- 
hended in  all  the  domain  of  our  confederacy?  And  when  the 
laws  do  not  sanction  the  arrest  even  in  our  own  territory,  do  you 
authorize  it  to  be  effected  everywhere?  Moreover,  in  making 
the  offender  liable  to  be  arrested,  you  have  allowed  everything 
which  the  law  has  forbidden  ;  to  extort  money,  to  ill-treat  and  tor- 
ment him  in  his  lifetime,  to  keep  him  in  private  custody  and  put 
him  to  death.  Could  any  conviction  for  an  illegal  motion  be 
clearer  than  this  ?  Could  there  be  a  conviction  for  a  more  shame- 
ful decree?  For,  when  there  were  two  expressions  open  to  your 
choice,  one  applicable  to  parties  accused,  "if  any  one  shall  kill," 
another  to  convicted  parties,  "if  any  one  shall  be  a  murderer," 
in  your  description  you  adopted  the  term  for  a  person  under  accusa- 
tion, but  you  pronounce  against  untried  parties  a  sentence  which 
the  laws  do  not  pass  even  upon  the  condemned ;  and  the  inter- 
mediate proceedings  you  suppressed :  for  between  accusation 
and  conviction  is  trial,  which  the  defendant  has  nowhere  introduced 
in  his  decree. 

Read  the  laws  following :  — 

The  Law 

"And  if  any  one  shall  kill  a  murderer  or  be  the  cause  of  his 
death,  whilst  he  keeps  away  from  the  border-market  ^  and  from 
the  games  and  Amphictyonic  sacrifices,  such  person  shall  be  liable 
to  the  same  penalties  as  if  he  had  killed  an  Athenian;  and  the 
Fifty-one  ^  shall  decide." 

You  ought  to  be  informed,  O  Athenians,  what  was  the  intent  of 
him  that  framed  the  laws :  and  you  will  see  how  cautiously  and 
conformably  to  legal  principles  he  defined  everything.  If  any  one 
shall  kill  a  murderer,  (he  says,)  or  be  the  cause  of  his  death,  whilst 
he  keeps  away  from  the  border-market  and  from  the  games  and 
Amphictyonic  sacrifices,  such  person  shall  be  liable  to  the  same 
penalties  as  if  he  had  killed  an  Athenian ;  and  the  Fifty-one  shall 
decide.  What  does  all  this  mean  ?  He  considered  that,  if  a  man 
who  has  fled  from  his  country  on  a  charge  of  murder  and  been 
condemned  has  once  escaped  and  saved  himself,  though  he  ought 
to  be  expelled  from  the  native  land  of  his  victim,  it  is  not  righteous 

^  This,  as  the  orator  himself  shows,  was  a  place  on  the  confines  of  two 
neighbouring  states,  where  the  borderers  met  for  the  purpose  of  traffic. 
2  The  Ephetae. 


Chap.  XXIII,  §  3.]     ORATION  AGAINST  ARISTOCRATES  595 

to  kill  him  in  every  place.  What  was  the  legislator's  view  ?  That, 
if  we  slay  people  who  have  fled  to  other  countries,  others  will  slay 
those  who  have  fled  to  Athens.  And  should  this  be  the  case,  the 
only  refuge  that  is  left  for  the  unfortunate  will  be  abolished.  What 
is  this  ?  The  power  of  removing  from  the  land  of  the  murdered  to 
a  land  where  none  have  been  injured,  and  there  dwelling  in  security. 
To  prevent  what  I  say,  and  in  order  that  the  avenging  of  mis- 
fortunes may  not  be  endless,  he  wrote  —  "  if  any  one  shall  kill  a 
murderer  whilst  he  keeps  away  from  the  border-market"  —  those 
are  his  words  :  meaning  what  ?  From  the  borders  of  the  country. 
For  there,  as  it  appears  to  me,  our  own  people  and  the  neighbours 
adjoining  used  in  ancient  times  to  assemble ;  whence  he  has  called 
it  border-market.  And  again,  "  from  the  Amphictyonic  sacrifices." 
Wherefore,  I  ask,  did  he  exclude  a  murderer  from  these  too? 
He  banishes  the  culprit  from  everything  in  which  the  deceased  in 
his  lifetime  had  a  part :  first,  from  his  country  and  all  things  in  it 
either  sacred  or  profane,  assigning  the  border-market  as  the  limit 
from  which  he  declares  him  excluded :  next,  from  the  sacrifices 
of  the  Amphictyons ;  for  in  them,  if  the  deceased  was  a  Greek,  he 
had  a  part.  And  from  the  games.  On  what  account  ?  Because 
the  games  in  Greece  are  open  to  all,  and  by  virtue  of  the  general 
right  the  deceased  had  access  to  them  also.  Therefore  also  from 
them  let  him  keep  away.  From  all  these  places  he  banishes  the 
murderer.  But  if  any  one  shall  kill  him  elsewhere,  out  of  the  ex- 
cepted places,  the  legislator  has  given  the  same  redress  as  in  the 
event  of  killing  an  Athenian.  For  he  did  not  describe  the  exile  by 
the  name  of  the  state,  with  which  he  has  no  communion,  but  by 
that  of  the  crime  with  which  he  has  made  himself  chargeable; 
and  therefore  he  says,  "if  any  one  shall  kill  a  murderer."  Then, 
after  stating  from  what  he  must  be  excluded,  in  order  to  impose 
the  sentence  legally  he  mentioned  the  name  of  the  state  —  "  let 
him  be  subject  to  the  same  penalties  as  if  he  were  to  kill  an  Athe- 
nian"— speaking  a  different  language,  O  Athenians,  from  the  mover 
of  this  decree.  Is  it  not  cruel,  when  the  law  has  allowed  men  to 
live  safely  in  exile,  on  condition  of  their  avoiding  the  places  which 
I  have  mentioned,  to  propose  that  they  shall  be  delivered  up,  and 
to  rob  them  of  that  benefit  of  mercy  which  the  unfortunate  may 
fairly  claim  from  those  whom  their  crimes  concern  not ;  it  being 
uncertain,  in  the  darkness  of  our  future  destinies,  for  which  among 
us  all  the  benefit  is  reserved.  And  now,  should  the  slayer  of 
Charidemus  (supposing  such  an  event  really  to  happen)  be  slain 
in  return  by  any  persons  to  whom  he  is  surrendered,  after  he  has 


596  ANCIENT   AND    PRIMITIVE   LEGAL   TRANSACTIONS        [Part  IV. 

gone  into  exile  and  keeps  aloof  from  the  forbidden  places,  they 
will  themselves  be  amenable  to  the  penalties  of  murder,  and  so 
will  you,  Aristocrates  :  for  it  is  written,  "if  any  one  be  the  cause," 
and  you  will  be  the  cause,  having  given  the  sanction  of  your  decree. 
Well  then  :  if  we  let  you  alone  in  such  a  case,  we  shall  be  living  in 
company  with  men  polluted ;  if  we  take  proceedings  against  you, 
we  shall  be  forced  to  act  contrary  to  our  own  determinations.  Is 
it  a  slight  or  trivial  ground  that  you  have  for  setting  aside  the 
decree? 

Now  read  the  next  law  : 

The  Law 

"  If  any  one  beyond  the  boundaries  shall  pursue  or  seize  or  carry 
off  any  homicide  who  has  quitted  the  country,  whose  property  is 
not  forfeit,  he  shall  incur  the  same  penalties  as  if  he  did  the  like 
in  our  own  territory." 

Here,  men  of  Athens,  is  another  law  humanely  and  wisely 
framed,  which  the  defendant  will  be  shown  to  have  transgressed 
likewise.  "If  any  one"  —  it  says  —  "shall  so  treat  any  homicide 
who  has  quitted  the  country,  whose  property  is  not  forfeit."  It 
means  one*  who  has  withdrawn  on  account  of  an  involuntary 
homicide.  By  what  does  this  appear  ?  First,  by  its  saying  "  who 
has  quitted  the  country,"  and  not  "who  is  in  exile ;"  secondly,  by 
the  definition,  "whose  property  is  not  forfeit;"  for  the  estate  of 
those  who  commit  homicide  by  design  is  confiscate.  Therefore 
the  legislator  must  be  speaking  of  involuntary  homicides.  And 
what  are  his  words?  "If  any  one  beyond  the  boundaries"  —  he 
says — "shall  pursue  or  seize  or  carry  off."  And  what  means 
this  expression  "beyond  the  boundaries?"  The  boundary-line 
for  all  homicides  is  exclusion  from  the  country  of  the  deceased. 
From  this  he  permits  them  to  be  chased  and  taken  into  custody, 
but  beyond  the  limits  he  allows  neither  to  be  done.  And  if  any 
one  acts  contrary  to  this,  he  has  given  the  same  redress  as  if  he 
injured  the  party  while  staying  at  home,  declaring  that  he  shall 
incur  the  like  penalty  as  if  he  did  it  at  home.  Now  were  Aristoc- 
rates the  defendant  to  be  asked,  (and  don't  think  it  a  foolish 
question,)  first  —  if  he  knows  whether  any  one  will  kill  Charidemus 
or  whether  he  will  come  to  some  other  end  —  he  would  answer 
probably,  that  he  did  not  know.  We  will  assume  however  that 
some  one  will  kill  him.  Again,  do  you  know,  Aristocrates,  whether 
the  person  who  is  to  do  it  will  be  a  voluntary  or  an  involuntary 
agent,  an  alien  or  a  citizen  ?     It  is  impossible  for  you  to  say  that 


Chap.  XXIII,  §  3.]      ORATION  AGAINST  ARISTOCRATES  597 

you  know.  Then  surely  you  ought  to  have  added  these  particu- 
lars, saying,  "if  any  one  shall  kill  voluntarily  or  involuntarily, 
justly  or  unjustly,  being  a  citizen  or  an  alien ;"  so  that,  by  whom- 
soever the  deed  was  done,  he  might  have  had  justice  according  to 
law ;  but  decidedly  not,  after  a  mere  term  of  accusation,  to  have 
added  "let  him  be  liable  to  arrest."  For  what  boundary  have  you 
left  by  this  clause,  when  the  law  quite  plainly  prohibits  all  pursuit 
beyond  the  boundaries,  and  yet  you  allow  arrest  in  any  place? 
And  the  law  forbids  not  only  pursuit,  but  even  arrest,  beyond  the 
boundaries  :  whereas  by  your  decree  any  one  who  pleases  may  get 
a  man  who  has  unintentionally  taken  life  delivered  into  his  hands, 
and  carry  him  by  force  into  the  country  of  the  deceased.  Do  you 
not  confound  all  human  judgment,  and  exclude  the  motives  ac- 
cording to  which  every  action  is  honourable  or  disgraceful  ?  You 
see,  Athenians,  that  so  it  is  not  merely  upon  questions  of  homicide 
but  upon  all  questions :  —  "  If  a  man  commits  an  assault,  being 
the  aggressor,"  the  law  says ;  implying  that,  if  he  defended  him- 
self, he  is  not  guilty.  " If  a  man  speaks  abusive  words "  —  "which 
are  false,"  the  lawgiver  adds;  as  much  as  to  say  that,  if  they  are 
true,  it  is  justifiable.  "If  a  man  kills  another  by  design;"  as 
much  as  to  say  that,  if  he  does  so  unintentionally,  it  is  different. 
"If  one  damages  another  intentionally  without  just  cause."  In 
every  case  we  shall  find  the  motive  determining  the  thing.  But 
not  so  with  you.  You  words  are  unqualified  —  "if  any  one  shall 
kill  Charidemus,  let  him  be  arrested  "  —  though  he  may  have  done 
it  unintentionally,  though  justly,  though  in  self-defence,  though 
for  a  cause  which  the  law  allows,  though  in  any  manner  whatever. 
Read  the  law  that  follows  : 


The  Law 

"And  no  persons  shall  be  liable  to  any  legal  proceedings  for 
homicide,  who  exhibit  an  information  against  exiles,  in  case  any 
one  return  whither  it  is  not  lawful." 

This,  men  of  Athens,  is  a  law  of  Draco ;  so  are  all  the  laws  of 
homicide  which  I  have  cited ;  and  you  must  look  at  his  meaning. 
Those  who  exhibit  an  information  against  murderers  returning 
whither  it  is  not  lawful,  he  says,  shall  not  be  liable  to  proceedings 
for  homicide.  Here  he  declares  two  principles  of  law,  both  of 
which  the  defendant  has  violated  in  his  decree :  first,  he  allows 
one  to  exhibit  an  information  against  the  murderer,  but  not  to 
carry  him  off  in  one's  own  custody ;   secondly,  even  this  he  only 


598  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV, 

allows  when  a  man  returns  where  it  is  not  lawful,  not  in  any  place 
that  he  goes  to.  And  where  is  it  not  lawful  to  go  ?  To  the  city 
from  which  he  is  exiled.  Where  does  he  very  plainly  show  this? 
"In  case  any  one  return,"  he  says.  This  cannot  be  referred  to 
any  other  than  the  city  from  which  a  man  is  exiled :  for  it  is  im- 
possible surely  to  return  to  one  from  which  you  were  never  banished 
at  all.  The  law  therefore  has  allowed  an  information,  and  only 
in  case  a  man  returns  where  it  is  not  lawful :  Aristocrates  lias  it  — 
let  him  be  subject  to  arrest  even  in  places  to  which  no  law  forbids 
him  to  flee. 

Read  another  law : 

The  Law 

"If  one  man  shall  kill  another  unintentionally  in  a  prize-fight, 
or  slaying  him  in  an  ambuscade  or  in  battle  by  mistake,  or  after 
catching  him  with  his  wife,  or  with  his  mother,  or  with  a  sister, 
or  with  a  daughter,  or  with  a  concubine  whom  he  keeps  to  beget 
free-born  children,^  he  shall  not  go  into  exile  for  homicide  on  such 
account." 

Many  laws,  O  Athenians,  are  violated  by  the  decree,  but  none 
more  completely  than  the  law  which  has  just  been  read.  For 
although  the  law  so  plainly  gives  out  and  declares,  under  what 
circumstances  it  shall  be  lawful  to  kill,  the  defendant  overlooked  . 
all  this,  and  has  inserted  the  penal  clause  without  mentioning  how 
the  death  is  effected.  Yet  mark  how  fairly  and  righteously  all  the 
distinctions  were  drawn  by  their  author.  He  laid  it  down,  that 
it  was  no  crime  to  kill  a  man  in  a  prize-fight.  Why  ?  He  looked 
not  at  the  event,  but  at  the  intention  of  the  party.  And  what  is 
this  ?  To  vanquish  without  taking  life,  not  to  kill.  If  the  adver- 
sary was  too  weak  to  endure  the  struggle  for  victory,  he  considered 
that  he  was  the  cause  of  his  own  misfortune,  and  therefore  allowed 
him  no  redress.  Again —  "if  in  battle  by  mistake,"  he  says  — 
such  a  person  also  shall  be  deemed  pure.  Properly :  for  if  I 
destroyed  a  man  supposing  him  to  be  one  of  the  enemy,  I  deserve, 
not  to  be  brought  to  trial,  but  to  obtain  forgiveness.  "Or  catch- 
ing with  his  wife,"  he  says,  "  or  with  his  mother,  or  sister,  or  daugh- 
ter, or  with  a  concubine  whom  he  keeps  to  beget  free-born  children  "  • 
—  one  that  kills  on  any  of  these  accounts  he  lets  off  with  impunity, 
acquitting  him,  O  Athenians,  with  the  most  perfect  justice. 
Wherefore  so?     In  defence  of  those  for  whom  we  fight  with  the 

1  They  would  enjoy  the  political  franchise,  if  their  mother  was  an  Athe- 
nian, though  they  might  not  have  heritable  rights. 


Chap.  XXIII,  §  3.]      ORATION  AGAINST  ARISTOCRATES  599 

enemy,  to  protect  them  from  insult  and  indignity,  he  allows  us  to 
kill  even  our  own  people,  if  they  insult  and  outrage  them  contrary 
to  law.  For  since  there  is  no  race  of  friends  and  foes,  but  it  is 
their  actions  that  make  the  one  and  the  other,  the  law  permits  us 
to  punish  as  enemies  those  who  commit  acts  of  hostility.  It  is 
monstrous  then,  when  there  are  so  many  causes  for  which  it  is 
lawful  to  kill  other  men,  that  Charidemus  should  be  the  only 
person  in  the  world  whom  even  for  these  causes  it  is  not  lawful  to 
kill. 

Suppose  it  should  happen  to  Charidemus,  as  doubtless  it  has 
happened  to  others  before  now;  that  he  should  quit  Thrace  and 
take  up  his  abode  in  some  city,  where,  though  no  longer  possessing 
that  authority  by  which  he  does  so  many  things  forbidden  by  the 
laws,  he  will  be  driven  to  make  the  attempt  by  the  force  of  his 
habits  and  desires  :  won't  people  be  obliged  to  submit  to  his  out- 
rages in  silence  ?  At  least  it  will  not  be  safe  to  kill  him,  or  to  seek 
the  redress  which  the  law  affords,  by  reason  of  this  decree.  If  I  am 
met  with  the  objection  —  where  can  such  things  take  place  ?  — 
what  prevents  me  also  saying,  who  can  slay  Charidemus  ?  How- 
ever, don't  let  us  look  at  that :  but,  since  the  decree  that  we  are 
trying  was  passed,  not  on  account  of  anything  which  had  taken 
place,  but  to  provide  for  something  which  no  one  is  sure  ever  will 
take  place,  let  the  chance  of  the  future  be  common  to  both;  to 
this  let  us  conform  our  expectations  humanly,  and  look  at  it  as  if 
both  the  one  contingency  and  the  other  may  possibly  happen. 
At  all  events,  if  you  rescind  the  decree,  should  any  disaster  befal 
Charidemus,  you  have  the  means  which  the  laws  give  to  avenge 
him :  if  you  let  it  stand,  in  case  he  should  injure  any  one  in  his 
lifetime,  the  legal  remedy  of  the  oppressed  is  gone.  In  every 
way  therefore  the  decree  is  opposed  to  the  laws,  and  it  is  your 
interest  to  set  it  aside. 

Read  the  next  law : 

The  Law 

"And  if  one  resisting  any  unlawful  seizure  or  violence  shall 
immediately  kill  the  aggressor,  his  death  shall  not  be  punishable." 

Here  are  other  causes  for  which  it  is  lawful  to  take  life.  If  a 
man  resisting  any  unlawful  seizure  or  violence  shall  immediately 
kill  the  aggressor,  he  orders  that  the  death  shall  not  be  punishable. 
Pray  observe,  how  wisely.  By  his  having  first  mentioned  the 
causes  for  which  life  may  be  taken,  and  then  adding  the  "  immedi- 
ately," he  left  no  time  for  contriving  any  foul  play :   by  the  word 


600  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

*' resisting,"  it  is  clear  that  he  gives  the  power  to  the  aggrieved 
party,  not  to  any  one  else.  The  law  has  therefore  given  permission 
to  kill  immediately  in  self-defence;  Aristocrates  has  it  simply, 
*'if  any  one  shall  kill,"  even  though  with  justice  or  as  the  laws 
allow.  Oh,  but  we  are  cavilling;  for  whom  will  Charidemus 
attack  or  seize  unjustly?  Everybody.  For  you  are  of  course 
aware,  that  all  military  commanders  lay  violent  hands  upon  those 
whom  they  think  they  can  overpower,  to  make  requisitions  of 
money.  Is  it  not  shameful  then  —  (O  earth  and  heaven  !)  —  is  it 
not  manifestly  illegal,  contrary  not  only  to  the  WTitten  law,  but  to 
the  common  law  of  all  mankind,  that  I  am  not  at  liberty  to  resist  a 
person  who  seizes  or  forcibly  carries  off  my  property,  treating  me 
as  an  enemy  ?  —  for  even  in  this  way  it  will  not  be  lawful  to  kill 
Charidemus ;  but,  should  he  iniquitously  seize  and  make  booty  of 
any  man's  property,  the  party  killing  him  will  be  liable  to  arrest, 
although  the  law  gives  impunity  under  such  circumstances. 
Read  the  next  law : 

The  Law 

"Whatever  person,  whether  he  be  a  magistrate  or  in  a  private 
station,  shall  cause  this  statute  to  be  defeated,  or  shall  alter  it,  he 
shall  be  disfranchised,  and  his  children  likewise,  and  his  property 
shall  be  forfeit." 

You  have  heard  the  law,  O  Athenians,  saying  positively  — 
w^hatever  person,  whether  he  be  a  magistrate  or  in  a  private  station, 
shall  cause  this  statute  to  be  defeated,  or  shall  alter  it,  let  him  be 
disfranchised  and  his  children  likewise,  and  let  his  property  be 
forfeit.  Does  it  appear  to  you,  that  the  framer  of  the  law  took 
small  or  slight  pains  to  establish  its  validity,  and  to  prevent  its 
being  defeated  or  altered  ?  Nevertheless  Aristocrates  the  defend- 
ant, but  little  regarding  him,  does  alter  and  defeat  it.  For  what 
is  altering  but  this;  when  a  man  allows  punishment  out  of  the 
appointed  tribunals  and  limits  of  banishment,  when  he  makes 
people  outlaws,  and  does  away  with  their  right  to  be  heard  ?  What 
is  defeating  but  this;  when  a  man  frames  a  complete  series  of 
clauses  contrary  to  the  enactments  of  the  law  ? 

And  not  only  these  laws  has  he  violated,  O  Athenians,  but 
many  more,  which  I  have  not  exhibited  on  account  of  the  number. 
However  I  will  sum  it  up  in  a  few  words.  All  the  laws  concerning 
the  courts  of  homicide,  which  require  the  parties  to  be  summoned 
or  to  give  testimony  or  make  oath,  or  which  give  any  other  direc- 
tion, he  has  transgressed  and  violated  by  the  present  decree.     For 


Chap.  XXIII,  §3.]      ORATION  AGAINST  ARISTOCRA.TES  601 

where  there  is  no  summons,  no  trial,  no  testimony  of  a  witness,  no 
swearing  of  an  oath,  buf  immediately  after  the  charge  the  punish- 
ment is  ordered,  and  one  too  which  the  laws  prohibit,  what  else 
can  one  say  ?  All  these  proceedings  take  place  before  five  courts, 
as  appointed  by  the  laws.  But  perhaps  it  may  be  said  —  the 
courts  are  of  no  account,  and  are  not  founded  in  justice,  whereas 
the  defendant's  ordinances  are  just  and  honourable.  Quite  the 
contrary.  I  don't  know  that  there  has  ever  been  a  decree  passed 
in  Athens  more  shameful  than  the  defendant's;  while,  of  all 
tribunals  that  exist  among  mankind,  none  can  be  shown  more 
august  or  equitable  than  these.  I  would  briefly  advert  to  certain 
facts,  the  mention  of  which  brings  honour  and  renown  to  the  com- 
monwealth, and  which  you  will  be  better  pleased  to  hear.  I  will 
begin  with  that  which  will  throw  the  fullest  light  upon  the  subject, 
after  referring  to  the  grant  which  has  been  made  to  Charidemus. 

We,  men  of  Athens,  created  Charidemus  a  citizen,  and  by 
means  of  such  grant  we  admitted  him  to  civil  and  religious  com- 
munion, to  partake  in  our  legal  rights,  in  all  that  we  ourselves 
enjoy.  There  are  many  institutions  among  us  of  a  character  not 
to  be  found  elsewhere,  but  one  there  is  the  most  peculiar  of  all, 
and  the  most  highly  venerable,  the  court  of  Areopagus,  respecting 
which  we  have  more  glorious  traditions  and  myths,  and  more 
honourable  testimonies  of  our  own,  then  we  have  of  any  other 
tribunal;  of  which  it  is  proper  you  should  hear  one  or  two  by 
way  of  example.  In  ancient  times,  as  we  are  informed  by  tradition, 
the  Gods  in  this  tribunal  alone  deigned  both  to  demand  and  to 
render  justice  for  murder,  and  to  sit  in  judgment  upon  disputes 
between  each  other ;  so  says  the  legend :  Neptune  demanded 
justice  of  Mars  on  behalf  of  his  son  Halirrhothius,  and  the  twelve 
Gods  sat  in  judgment  between  the  Furies  and  Orestes.  Such  are 
its  ancient  glories :  now  for  those  of  later  date. 

This  tribunal  neither  despot  nor  oligarchy  nor  democracy  has 
ventured  to  deprive  of  its  jurisdiction  in  murder :  all  people 
consider  that  any  process  of  their  own  invention  would  be  less 
efficacious  than  that  dev4sed  by  the  Areopagites.  In  addition  to 
such  important  facts,  here  only  has  it  occurred  that  neither  a 
convicted  criminal  nor  a  defeated  prosecutor  ever  established  a 
charge  against  the  propriety  of  the  verdict.  In  contempt  of  this 
jurisdiction  and  of  the  legal  remedies  attached  to  it,  the  author  of 
the  present  decree  has  empowered  Charidemus  in  his  lifetime  to  do 
what  he  pleases,  and,  in  case  any  disaster  should  befal  him,  has 
given  the  means  of  persecution  to  his  friends. 


ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS        [Part  IV. 

Just  consider.  Of  course  you  all  know  that  in  the  Areopagus, 
where  the  law  allows  and  requires  proceedings  to  be  taken  for 
murder,  in  the  first  place  the  party  who  charges  another  with  any 
such  crime  will  make  oath  with  imprecations  upon  himself  and  his 
family  and  his  house ;  in  the  next  place  it  is  no  ordinary  oath  that 
he  has  to  swear,  but  such  as  is  taken  upon  no  other  occasion ;  for 
he  must  stand  upon  the  entrails  of  a  boar  and  a  ram  and  a  bull, 
and  they  must  have  been  immolated  by  the  proper  persons  and  on 
the  appointed  days,  so  that  both  in  regard  to  the  time  and  the 
officiating  persons  every  due  solemnity  may  have  been  observed. 
And  even  then  the  party  who  has  sworn  such  an  oath  is  not  yet 
believed,  but,  in  case  he  should  be  convicted  of  untruth,  he  will 
carry  away  the  curse  of  perjury  upon  his  children  and  his  family, 
and  that  is  all  he  will  get  by  it.  If  his  accusation  be  considered 
just,  and  he  obtain  a  conviction  for  murder,  even  then  he  gets  no 
power  over  the  condemned,  who  for  punishment  is  given  up  to  the 
laws  and  to  the  persons  charged  with  that  office :  he  may  behold 
the  condemned  suffering  the  penalty  which  the  law  imposes, 
but  nothing  further.  Such  is  the  duty  assigned  to  the  prosecutor  : 
the  accused  has  to  take  the  oath  in  like  manner,  but,  after  he  has 
delivered  his  first  speech,  he  is  at  liberty  to  withdraw,  and  neither 
the  prosecutor  nor  the  judges  nor  any  persons  whatever  have 
authority  to  prevent  him.  How  comes  it  to  be  so,  men  of  Athens  ? 
Because  they  that  made  the  ordinances  originally,  whoever  they 
were,  whether  Heroes  or  Gods,  did  not  press  upon  the  unforunate, 
but  humanely,  as  far  as  they  could  with  propriety,  alleviated  their 
miseries.  All  these  regulations,  so  fair  and  so  equitable,  the  framer 
of  the  present  decree  is  shown  to  have  infringed ;  for  not  a  single 
portion  of  them  is  adopted  in  his  decree. 

First  therefore  this  one  tribunal,  its  written  laws  and  unwritten 
usages,  have  been  violated  by  the  decree. 

A  second  tribunal  also,  the  court  of  Palladium,^  for  the  trial  of 
involuntary  homicide,  he  supersedes,  as  I  shall  show,  and  infringes 
the  laws  which  are  administered  in  it.     For  here  the  practice  is, 

^  Of  the  origin  of  these  four  courts  some  account  is  given  in  Pausanias 
(i.  28),  as  weU  as  in  Harpocration  and  elsewhere.  The  first  of  them 
was  held  in  a  temple  of  Pallas,  where,  according  to  the  story,  was  de- 
posited the  Palladium  brought  from  Troy  by  Diomed  and  his  followers, 
who,  landing  on  the  coast  of  Attica,  were  inadvertently  attacked,  and 
some  of  them  slain,  by  Demophoon  and  the  Athenians.  The  second 
was  held  in  a  temple  of  Apollo  Delphinius,  evidently  on  account  of  the 
protection  afforded  by  the  Delphic  god  to  Orestes.  The  third  was  held 
in  a  room  of  the  Prytaneum,  or  city-hall.  The  fourth  was  by  the  sea- 
shore in  Piraeus,  and  received  its  name  because  it  was  held  in  a  pit. 


Chap.  XXIII,  §  3.]      ORATION   AGAINST  ARISTOCRATES  603 

first  for  the  parties  to  swear,  then  to  plead,  and  lastly  for  the  court 
to  decide  :  of  which  there  is  nothing  in  this  man's  decree.  If  the 
accused  be  convicted  and  found  to  have  done  the  deed,  neither  the 
prosecutor  nor  any  one  else  has  power  over  him,  but  only  the  law. 
And  what  does  the  law  command?  That  one  convicted  of  in- 
voluntary homicide  shall  on  certain  stated  days  leave  the  country 
by  an  appointed  road,  and  remain  in  exile  until  he  has  appeased 
certain  of  the  relatives  of  the  deceased :  then  it  permits  him  to 
return,  not  anyhow,  but  in  a  particular  manner,  ordering  him  to 
sacrifice  and  to  be  purified,  and  giving  some  other  directions  what 
must  be  done.  Rightly,  O  men  of  Athens,  does  the  law  prescribe 
air  this.  For  it  is  just  to  make  the  penalty  of  unintentional 
homicide  less  than  that  of  intentional ;  and  it  is  right  to  provide 
security  for  leaving  the  country  before  banishment ;  and  for  the 
returning  exile  to  make  atonement  and  purify  himself  by  certain 
ceremonies,  and  for  everything  to  be  under  the  control  of  the  laws, 
this  and  all  of  it  is  reasonable.  Yet  all  these  arrangements,  planned 
so  wisely  by  the  original  legislators,  the  defendant  in  framing  his 
decree  disregarded. 

Here  then  have  we  two  tribunals  of  high  dignity  and  importance, 
and  usages  handed  down  from  time  immemorial,  which  he  has 
impudently  overridden. 

There  is  also  a  third  tribunal,  one  of  the  most  awful  sanctity, 
where  a  man  acknowledges  that  he  killed,  but  contends  that  he 
has  done  it  lawfully.  This  is  the  court  of  Delphinium.  It  appears 
to  me,  men  of  the  jury,  that  they  who  originally  settled  the  law 
upon  these  subjects  inquired  in  the  first  instance,  whether  no 
homicide  could  be  deemed  rightful,  or  whether  a  certain  kind  ought 
to  be  so  deemed ;  considering  then  that  Orestes,  acknowledging  to 
have  killed  his  mother,  gets  a  tribunal  of  Gods  to  try  him  and  is 
acquitted,  they  held  that  'some  kind  of  homicide  was  justifiable ; 
for  Gods  would  certainly  not  give  a  wrong  verdict.  Having  come 
to  that  opinion,  they  defined  in  precise  terms  the  causes  for  which  it 
was  lawful  to  kill.  Aristocrates  however  makes  no  exception, 
but  simply  declares  that,  if  any  one  shall  kill  Charidemus,  (even 
though  justly  or  as  the  laws  allow,)  he  must  be  given  up.  Now 
to  all  actions  and  words  there  are  two  possible  predicates,  namely  of 
just  and  unjust.  No  single  action  or  word  can  have  both  of  them 
at  the  same  time ;  (for  how  could  the  same  thing  be  at  once  just 
and  not  just  ?)  but  everything  before  trial  is  supposed  to  have  one 
or  the  other ;  if  it  appear  to  have  the  quality  of  injustice,  it  is  set 
down  as  base,  if  of  justice,  as  honourable  and  good.     You  however 


604  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

attached  neither  of  those  conditions  to  the  clause  "  if  any  one  shall 
kill ;"  but  having  expressed  the  charge  itself  indefinitely,  and  hav- 
ing added  immediately  after,  "that  he  may  be  lawfully  appre- 
hended," you  have  clearly  treated  this  third  tribunal  and  its 
usages  with  contempt. 

There  is  a  fourth  besides  these,  the  court  in  the  Prytaneum, 
whose  jurisdiction  is  as  follows.  If  a  stone  or  a  piece  of  wood  or 
iron  or  anything  of  the  kind  falls  and  strikes  a  man,  and  we  are 
ignorant  who  threw  it,  but  know  and  have  in  our  possession  the 
instrument  of  death,  proceedings  are  taken  against  such  in- 
struments here.  If  then  it  is  not  right  that  inanimate  and  sense- 
less things,  when  they  lie  under  such  a  charge,  should  be  left 
untried,  surely  it  is  impious  and  dreadful,  that  one  who  is  possibly 
innocent,  but  who  (assuming  him  to  be  guilty)  is  at  all  events  a 
human  being  and  gifted  by  fortune  with  the  same  nature  as  our- 
selves, should  upon  such  a  charge  without  hearing  and  judgment 
be  given  up  to  his  accusers. 

There  is  yet  a  fifth  tribunal,  which  he  has  failed  to  respect,  and 
I  beg  you  to  observe  its  character.  It  is  that  in  Phreatto.  Here, 
men  of  Athens,  the  law  requires  a  person  to  take  his  trial,  who  has 
been  exiled  for  involuntary  homicide,  and,  before  those  who 
caused  his  banishment  have  pardoned  him,  incurs  the  charge  of 
wilful  murder.  And  the  framer  of  these  several  ordinances  did 
not,  because  it  was  impossible  for  the  criminal  to  come  to  Athens, 
overlook  his  case,  nor,  because  he  had  done  some  such  act  before, 
did  he  at  once  take  a  similar  charge  against  him  for  granted ;  but 
he  found  a  means  to  keep  religion  unprofaned,  and  did  not  deprive 
the  criminal  of  a  hearing  and  trial.  What  did  he  then?  He 
brought  the  judges  to  a  spot  to  which  the  criminal  might  repair, 
appointing  a  certain  place  in  Attica  by  the  seaside,  called  Phreatto. 
The  accused  then  sails  up  in  a  vessel  and  pleads,  without  touching 
the  land ;  the  judges  hear  and  decide  on  shore.  And  if  he  is  found 
guilty,  he  suffers  the  punishment  of  wilful  murder,  justly ;  if  he  is 
acquitted,  he  escapes  that  penalty,  but  undergoes  the  exile  for 
his  former  homicide.  Why,  let  me  ask,  have  these  arrangements 
been  made  so  carefully?  The  contriver  of  them  thought  it  was 
the  same  impiety  to  leave  a  guilty  man  at  large,  and  to  give  up  an 
innocent  man  for  punishment  before  trial.  Now,  if  for  already 
declared  homicides  such  anxiety  is  shown,  that  they  may  obtain  a 
hearing  and  a  trial  and  everything  that  is  fair  upon  a  subsequent 
charge,  surely  in  the  case  of  a  man  who  has  not  been  convicted, 
on  whom  no  judgment  has  been  passed,  whether  or  no  he  did  the 


Chap.  XXIII,  §3.]      ORATION  AGAINST   ARISTOCRATES  605 

deed,  whether  intentionally  or  unintentionally,  it  is  outrageous 
to  frame  a  decree  for  giving  him  up  to  his  accusers. 

In  addition  to  all  these  legal  remedies,  there  is  also  a  sixth, 
which  the  defendant  has  equally  set  at  nought  by  his  decree.  If  a 
man  has  been  ignorant  of  all  the  other  courses,  or  if  the  times  within 
which  they  must  each  be  pursued  have  gone  by,  or  if  for  any  rea- 
son whatever  he  does  not  choose  to  adopt  these  methods  of  prose- 
cution, but  sees  the  homicide  walking  about  in  the  temples  and 
the  market,  it  is  lawful  to  carry  him  off  to  prison,  but  not  to  his  own 
house  or  where  he  pleases,  as  you  have  allowed.  And  when  he 
is  brought  to  prison,  he  will  suffer  nothing  there  before  trial,  but, 
if  he  is  found  guilty,  he  will  be  punished  with  death ;  if  the  person 
who  arrested  him  fails  to  get  a  fifth  part  of  the  votes,  he  will  be 
mulcted  in  a  thousand  drachms.  Aristocrates  orders  nothing 
of  this  kind,  but  that  the  one  party  may  accuse  without  risk,  and 
the  other  be  given  up  instantly  without  trial.  And  if  any  persons 
or  even  a  whole  community  shall  interfere,  to  prevent  the  destruc- 
tion of  all  these  usages  which  I  have  enumerated,  the  abolition  of  all 
these  tribunals  which  I  have  spoken  of,  which  Gods  established, 
and  to  which  men  have  been  resorting  ever  since,  and  shall  rescue 
the  party  thus  illegally  attacked  and  outraged,  he  has  put  in  a 
clause  to  excommunicate  them,  nor  does  he  allow  even  them  a 
hearing  or  a  trial,  but  punishes  them  without  trial  immediately. 
How  could  there  be  a  more  shameful  decree  than  this,  or  a  more 
illegal  one  ? 

Have  we  any  law  yet  remaining?  Show  me.  There  is  one. 
Recite  it. 

The  Law 

"  If  any  one  shall  die  a  violent  death,  his  relations  shall  be  en- 
titled to  take  hostages  in  that  behalf,  until  they  have  either  sub- 
mitted to  judgment  for  the  homicide,  or  given  up  the  authors  of  it. 
And  the  taking  of  hostages  shall  extend  to  three,  but  not  beyond.'* 

There  are  many  good  laws,  O  Athenians,  but  I  don't  know  that 
any  is  better  or  juster  than  this.  Only  see  how  equitably,  how 
very  humanely  it  is  drawn.  "  If  any  man  shall  die  a  violent  death," 
it  says.  First  then,  by  adding  this  word  "violent,"  he  has  given 
us  an  indication  that  he  means  "if  unjustly."  The  relations,  he 
says,  shall  be  entitled  in  that  behalf  to  take  hostages,  until  they 
have  either  submitted  to  judgment  for  the  homicide  or  given  up 
the  authors  of  it.  Look  how  fairly.  First  he  requires  them  to 
submit  to  judgment ;   secondly,  if  they  do  not  like  this,  he  orders 


606  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS        [Part  IV. 

them  to  give  up  the  author ;  if  they  will  not  do  either  of  these  things, 
he  says,  the  taking  of  hostages  shall  extend  to  three,  but  not 
beyond.  Well  then :  every  part  of  this  law  is  contravened  by 
the  decree.  For  in  the  first  place  he  writes,  "  if  any  one  shall  kill," 
but  does  not  add  "unjustly,"  or  "violently,"  or  anything  at  all. 
In  the  next  place,  before  any  demand  of  satisfaction,  he  orders 
that  the  party  may  be  immediately  apprehended.  And  in  addi- 
tion to  this,  while  the  law  directs  that,  if  the  people  among  whom 
the  disaster  has  occurred  neither  submit  to  judgment  nor  give  up 
the  authors  of  the  crime,  they  shall  be  liable  to  have  hostages  taken 
from  them  to  the  number  of  three ;  Aristocrates  lets  them  go  un- 
punished, nay,  he  has  left  them  out  of  account  altogether;  but 
those  who  have  harboured  a  man  already  in  exile,  (for  so  I  will 
assume,)  according  to  the  universal  law  which  permits  the  receiv- 
ing of  an  exile,  he  excludes  from  all  connexion  with  Athens,  if  they 
will  not  deliver  up  the  suppliant  for  punishment.  Therefore,  by 
his  having  no  proviso  as  to  the  mode  of  killing,  and  by  his  not 
directing  any  trial  or  any  demand  of  satisfaction,  and  by  his  allow- 
ing arrest  in  any  place  whatever,  and  by  his  punishing  those  that 
harbour  and  not  those  among  whom  the  disaster  occurred,  in  short 
by  everything  it  is  quite  manifest,  that  here  is  another  law  violated 
by  his  decree. 

Now  read  the  next : 

The  Law  ^ 

"  And  it  shall  not  be  lawful  to  propose  any  statute  applying  to  a 
particular  man,  unless  the  same  shall  apply  to  all  Athenians." 

The  law  which  has  just  been  read  is  not  another  of  the  laws  of 
homicide,  men  of  the  jury,  yet  it  is  fully  as  good,  if  any  law  ever 
was  so.  For  the  proposer  of  it  thought  that,  as  other  constitu- 
tional rights  are  equally  shared  by  all,  so  ought  every  man  to 
share  equally  in  the  laws ;  and  therefore  he  made  it  unlawful  to 
propose  any  statute  applying  to  a  particular  man,  unless  the  same 
should  apply  to  all  Athenians.  Since  then  it  is  admitted  that 
decrees  ought  to  be  framed  according  to  the  laws,  a  man  who 
draws  a  special  one  in  favour  of  Charidemus,  which  will  not  extend 
to  all  of  you,  clearly  must  have  moved  in  contravention  of  this 

1  A  privilegium,  or  law  specially  made  for  a  particular  person,  was 
forbidden  by  the  Twelve  Tables,  as  Cicero  tells  us,  "  Ora^t.  pro  Domo,"  17. 
Compare  "De  Legibus,"  iii.  4.  19;  "Brutus,"  23;  "Orat.  pro  Sextio,"  30. 

It  appears  from  these  passages  that  Cicero  understood  the  word 
-privilegium  as  used  in  a  bad  sense  only,  of  a  penal  law  passed  against  an 
individual,  such  as  the  bills  of  pains  and  penalties. 


Chap.  XXIII,  §  3.]      ORATION  AGAINST  ARISTOCRATES  607 

law.     For  it  can  never  be  constitutional  to  put  that  in  a  decree, 
which  cannot  even  be  the  subject  of  a  statute. 
Read  the  next  law  —  or  are  these  all  ? 


The  Law 

"  And  no  decree,  either  of  the  Council  or  the  People,  shall  have 
greater  authority  than  a  law." 

Put  it  down.  It  will  be  short  and  easy  work,  I  expect,  men  of 
the  jury,  to  show  that  this  law  has  been  violated  by  the  decree. 
For  when  there  are  so  many  laws,  and  when  a  man  has  prepared  a 
motion  in  defiance  of  them  all,  and  included  a  private  concern  in  a 
decree,  how  can  it  be  doubted  that  he  requires  a  decree  to  have 
greater  authority  than  a  law  ? 

I  wish  also  to  show  you  one  or  two  of  the  decrees  which  have 
been  drawn  up  for  real  benefactors  of  the  commonwealth,  that 
you  may  see  it  is  easy  to  frame  just  resolutions,  when  the  sole 
purpose  of  framing  them  is  to  honour  a  man  and  impart  to  him 
the  rights  that  we  enjoy  ourselves,  not  under  the  show  of  doing 
this  to  practise  trickery  and  fraud.  Read  these  decrees.  That 
it  may  not  be  long  for  you  to  hear,  from  each  of  the  decrees  is 
selected  just,  that  part  which  concerns  my  charge  against  the 
defendant.     Read. 

[Extracts  are  here  read  from  various  decrees.] 

You  see,  men  of  Athens,  that  all  have  drawn  them  up  in  the 
same  manner  :  (let  there  be  the  same  redress  for  him,  it  says,  as  if 
the  party  killed  an  Athenian  :)  leaving  your  existing  laws  upon  this 
head  in  force,  and  even  setting  off  their  dignity,  since  they  esteemed 
it  as  a  boon  to  allow  any  one  to  share  them.  Not  so  Aristocrates. 
He  vilifies  them  as  much  as  he  possibly  can ;  (certainly  he  treated 
them  as  worthless  when  he  took  pains  to  draw  a  special  decree :) 
and  even  disparages  the  grant,  by  which  you  have  bestowed 
citizenship  upon  Charidemus.  For,  as  if  you  were  only  too  happy 
and  even  owed  him  an  obligation,  he  has  proposed  that  you  should 
guard  his  person,  so  that  he  may  do  what  he  likes  with  impunity. 
Is  not  this  acting  as  I  say  ? 

I  know,  men  of  Athens,  Aristocrates  will  not  be  able  to  show 
that  he  has  not  plainly  transgressed  the  laws  by  his  decree,  but  will 
endeavour  to  keep  out  of  sight  the  most  grievous  of  his  delin- 
quencies, namely,  his  not  having  in  the  whole  of  his  decree  ap- 
pointed any  trial  of  such  a  charge.     I  do  not  deem  it  necessary  to 


608  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

say  much  upon  this  point,  but  I  will  show  clearly  from  the  decree 
itself,  that  even  he  does  not  suppose  there  is  any  trial  for  the  ac- 
cused party.  For  he  has  it  —  "  if  any  one  shall  kill  Charidemus, 
he  may  be  lawfully  apprehended,  and  if  any  people  shall  rescue 
him,  whether  they  be  individuals  or  a  community,  they  shall  be 
excluded  from  our  connexion "  —  not,  unless  they  surrender 
for  trial  the  party  rescued,  but  absolutely  at  once.  Now,  if  he 
were  allowing  a  trial  and  not  taking  it  away,  he  would  have  put 
in  the  penal  clause  against  the  rescuers,  in  the  event  only  of  their 
not  producing  the  rescued  party  for  trial. 

I  believe  that  he  will,  urge  this  plea  also,  and  try  hard  to  mislead 
you  by  it  —  that  the  decree  is  of  no  effect ,  for  it  is  an  order  of 
Council,  and  the  law  declares  that  resolutions  of  the  Council  shall 
be  in  force  for  a  year,  so  that,  even  if  you  acquit  him  now,  the  state 
will  suffer  no  detriment  by  the  decree. ^  In  answer  to  which  I 
would  have  you  remember  —  Aristocrates  drew  this  decree,  not 
that  it  might  be  void  and  thus  no  harm  should  befal  you,  (for  he 
could  have  abstained  from  drawing  any  at  all,  if  he  had  the  good 
of  the  commonwealth  in  view,)  but  that  you  might  be  deluded  and 
certain  people  execute  projects  adverse  to  your  interests.  The 
parties  who  have  indicted  the  decree  and  caused  delay,  and  through 
whom  it  is  invalid,  are  we.  It  would  be  absurd  then,  if  that  for 
which  thanks  is  due  to  us  should  be  the  safety  of  our  opponents. 
Nor  indeed  is  the  thing  so  simple  as  one  imagines.  If  there  was 
no  one  else  that  would  draw  decrees  like  him  without  regard  to  your 
interests,  the  thing  would  have  been  less  serious  perhaps :  but,  as 
there  are  many  such  persons,  it  is  not  well  for  you  to  leave  the  de- 
cree unrepealed.  For  who  will  not  draw  decrees  boldly  in  future, 
when  this  one  is  adjudged  blameless  ?  Who  will  refuse  to  ask  your 
votes  upon  them  ?  Who  will  indict  them  ?  You  have  not  there- 
fore to  consider,  whether  this  decree  is  void  by  lapse  of  time,  but  to 
reflect  that  by  your  verdict  upon  this,  if  you  pronounce  it  legal, 
you  will  give  impunity  to  men  who  may  wish  to  wrong  you  here- 
after. 


^  The  supposed  argument  of  Aristocrates  would  be  indeed  absurd. 
For  if  the  jury  acquitted  him  upon  his  trial,  the  decree  would  be  pro- 
nounced legal  and  remain  in  force :  if  either  he  declined  to  support  it, 
or  a  verdict  were  found  against  him,  then  the  decree  certainly  would 
have  had  no  more  effect  than  a  Probouleuma,  but  that,  as  the  orator 
says,  would  be  owing  entirely  to  the  prosecution,  and  no  thanks  for  it 
to  Aristocrates.  One  is  inclined  to  think  that  Demosthenes  is  here 
raising  up  a  straw,  in  order  to  blow  it  down  again :  yet  it  is  difficult  to 
judge  how  far  it  might  be  necessary  to  caution  the  jurors  even  against 
so  gross  a  fallacy. 


Chap.  XXIII,  §  3.]      ORATION  AGAINST  ARISTOCRATES  609 

Again,  Athenians :  it  has  not  escaped  me  that  Aristocrates, 
having  no  straightforward  or  honest  defence  to  urge,  will  resort 
to  fallacies  of  this  kind  —  that  similar  decrees  have  been  drawn 
up  by  many  persons  before.  This,  men  of  Athens,  is  no  proof  that 
the  defendant  has  made  a  legal  motion ;  as  there  are  many  causes 
through  which  you  have  often  been  led  into  error.  For  example : 
if  any  one  of  the  condemned  decrees  had  not  been  indicted  before 
you,  it  would  have  been  in  force,  I  presume  :  and  yet  it  must  have 
been  moved  contrary  to  law.  Or,  if  any  was  indicted,  but  either 
by  the  collusion  of  the  prosecutor  or  by  his  incompetency  to  man- 
age the  case  escaped  condemnation,  this  does  not  prevent  its  being 
illegal.  Were  not  the  judges  then  true  to  their  oaths?  Yes. 
How  so  ?  I  will  explain.  They  are  sworn  to  decide  according  to 
the  best  of  their  judgment ;  but  their  judicial  opinion  is  formed 
from  what  they  hear;  therefore,  when  they  give  their  verdict 
according  to  this,  they  act  conscientiously.  Every  one  has  a  clear 
conscience,  who  has  not  voted  contrary  to  his  opinion  either  from 
enmity  or  favour  or  any  other  unrighteous  cause.  If,  having  an 
instructor,  he  was  left  in  ignorance  of  any  point,  he  ought  not  to  be 
punished  for  his  misunderstanding  :  it  is  the  person  who,  knowing 
the  truth,  has  betrayed  the  judges  or  leads  then;i  astray,  that  is 
liable  to  the  curse.  Therefore  in  every  assembly  the  crier  pro- 
nounces a  curse,  not  upon  those  who  are  misled,  but  upon  those 
who  speak  to  mislead  either  the  Council  or  the  People  or  the  Jury. 
Don't  let  it  be  told  you  then,  that  such  decrees  have  been  passed ; 
let  it  be  shown  that  they  are  lawful.  Don't  let  them  plead  that 
other  men  have  pronounced  former  decrees  to  be  valid ;  but 
require  them  to  satisfy  you,  that  their  arguments  upon  this  decree 
are  juster  than  ours.  If  they  are  unable  to  do  so,  it  is  not  right 
for  you,  I  think,  to  let  the  delusion  of  others  prevail  over  your  own 
understanding.  Besides,  as  it  appears  to  me,  it  is  sheer  impudence 
to  argue  in  such  a  way,  that  similar  decrees  have  been  passed  by 
others  before.  It  is  not  because  the  laws  have  been  at  some  former 
time  transgressed,  and  you  have  followed  the  precedent,  that  you 
ought  to  be  acquitted :  on  the  contrary,  you  should  be  convicted 
all  thetfnore  on  that  account.  For  as,  if  any  of  the  former  parties 
had  been  condemned,  you  would  not  have  framed  this  motion,  so, 
if  you  are  convicted  now,  no  one  will  frame  such  again. 

That  Aristocrates  has  drawn  his  decree  plainly  in  defiance  of  all 
the  laws,  he  will  not  be  able,  I  think,  to  deny :  but  I  have  seen  a 
man  before  now%  O  Athenians,  who  upon  his  trial  for  an  illegal 
measurCj  when  he  was  convicted  by  the  laws,  urged  and  insisted 


610  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

strongly  that  what  he  had  proposed  was  for  your  advantage :  a 
fooUsh,  or  rather  an  impudent  Une  of  argument,  I  take  it;  for, 
even  if  his  points  are  good  in  all  other  respects,  inasmuch  as  you 
are  sworn  to  decide  according  to  the  laws,  and  he  asks  you  to  con- 
firm a  decree  which  he  himself  cannot  show  to  be  rightfully  drawn, 
it  can  hardly  be  for  your  good,  since  you  ought  to  set  the  highest 
value  upon  the  observance  of  your  oaths :  at  the  same  time  this 
impudence  has  a  soft  of  reasonableness  about  it.  To  the  defend- 
ant however  even  this  line  of  argument  will  not  be  open  :  for  the 
decree,  entirely  opposed  as  it  is  to  the  laws,  is  more  injurious  than 
illegal.  And  this  also  I  will  prove  to  you  immediately.  That  I 
may  make  my  meaning  clear  in  the  fewest  possible  words,  I  will 
mention  an  example  familiar  to  you  all. 

You  know  it  is  good  for  the  commonwealth,  that  neither  the 
Thebans  nor  the  Lacedaemonians  should  be  powerful;  but  that 
the  one  should  have  the  Phocians  for  a  counterpoise,  the  other 
some  other  people ;  for  by  such  a  state  of  things  your  safety  and 
preeminence  are  established.  Be  sure  then,  it  is  equally  advan- 
tageous for  your  countrymen  of  Chersonesus,  that  none  of  the 
Thracians  should  be  powerful :  for  their  mutual  quarrels  and  jeal- 
ousies are  the  best  and  firmest  of  all  safeguards  for  the  Chersonese. 
This  decree  however,  by  giving  security  to  the  chief  minister  of 
Cersobleptes,  and  putting  the  generals  of  the  other  princes  in 
fear  and  dread  of  being  accused,  renders  the  latter  powerless,  and 
the  former  (a  single  monarch)  strong. 

That  you  may  not  be  greatly  surprised  at  your  decrees  having 
so  important  an  effect,  I  will  remind  you  of  a  circumstance  which 
you  are  all  acquainted  with.  When  Miltocythes  revolted  from 
Cotys,  (the  war  had  then  lasted  for  some  time,  Ergophilus  had 
been  removed,  and  Autocles  was  about  to  sail  from  Athens  as 
commander,)  a  certain  decree  was  framed  here,  under  the  terror 
of  which  Miltocythes,  thinking  that  you  were  not  on  his  side,  with- 
drew, and  Cotys  got  possession  of  the  Sacred  Mountain  and  the 
treasures.  Afterwards,  men  of  Athens,  Autocles  was  brought  to 
trial  for  having  caused  the  ruin  of  Miltocythes ;  the  time  for  an 
indictment  against  the  author  of  the  decree  had  expired,  and  the 
thing  had  taken  a  ruinous  turn  for  the  commonwealth. 

Be  assured  then  that  now,  unless  you  repeal  this  decree,  it  will 
marvellously  discourage  both  the  princes  and  their  generals : 
for  they  will  imagine  that  they  are  wholly  disregarded,  and  that 
you  are  turning  round  to  Cersobleptes.  If  in  consequence  of  such 
belief  they  should  yield  up  their  kingdom  when  Cersobleptes  takes 


Chap.  XXIII,  §  3.]      ORATION  AGAINST  ARISTOCRATES  611 

an  opportunity  of  attacking  them,  see  again  what  will  happen. 
Let  me  suppose  that  Cersobleptes  commits  hostilities  against  us, 
which  he  is  more  likely  to  do  than  otherwise  if  he  has  the  means, 
shall  we  not  have  recourse  to  them,  and  strive  by  their  means  to 
weaken  him?  Suppose  then  they  should  say  to  us — "You, 
Athenians,  not  only  refused  to  succour  us  when  we  were  attacked, 
but  made  it  wofully  perilous  for  us  to  defend  ourselves,  by  passing 
a  decree  that,  if  any  one  killed  the  man  who  was  opposing  your 
interests  and  ours,  he  might  lawfully  be  apprehended :  you  are 
not  entitled  therefore  to  call  for  our  aid  in  an  affair  which  you 
managed  so  badly  both  for  yourselves  and  for  us."  —  Tell  me ;  if 
they  should  say  this,  will  not  their  language  be  juster  than  ours  ? 
I  imagine  so. 


Nor  again  am  I  able  to  see,  that  all  men  will  not  demand  this 
honour,  who  have  any  pretensions  to  call  themselves  your  bene- 
factors, if  you  grant  it  to  Charidemus  :  for  example,  if  you  please, 
Simon,  Bianor,  Athenodorus,  hundreds  of  others.  Should  we 
then  pass  the  same  vote  in  favour  of  all,  we  shall  unthinkingly,  as  it 
seems,  be  acting  the  part  of  mercenaries,  making  ourselves  a  body- 
guard to  each  of  these  men ;  should  we  pass  it  in  favour  of  Charide- 
mus, and  not  of  the  rest,  the  rejected  will  have  a  right  to  complain. 
Suppose  now  that  Menestratus  the  Eretrian  should  ask  us  to  vote 
him  the  same  honour,  or  Phayllus  the  Phocian,  or  any  other  poten- 
tate, (there  are  many,  you  know,  with  whom  circumstances  often 
lead  us  to  contract  friendship ;)  shall  we  vote  it  to  all,  or  shall  we 
not?  We  shall  vote  it  very  possibly.  And  what  honourable 
excuse  shall  we  have,  0  Athenians,  when,  pretending  to  be  leaders 
of  the  Greeks  in  the  cause  of  freedom,  we  appear  as  the  body- 
guards of  men  who  have  raised  themselves  to  be  autocrats  over  the 
people  ?  I  can  see  none.  If  such  a  vote  should  be  accorded  to  any 
person,  (which  I  deny,)  it  should  be  given,  first,  to  one  who  has 
never  done  any  wrong,  secondly,  to  one  who  will  not  be  able  to  do 
wrong  if  he  desires,  and  further,  (honestly  speaking,)  to  one  who 
evidently  to  all  men  seeks  it  as  a  protection  against  injury,  not  as  a 
means  to  injure  others  with  impunity. 

That  Charidemus  is  not  a  person  faultless  in  his  conduct  towards 
you,  and  not  one  who  seeks  to  get  your  vote  as  a  protection  against 
injury,  I  shall  not  stop  to  prove :  but  that  he  is  not  to  be  trusted 
even  for  the  future,  I  will  show  with  your  permission ;  and  see  if 
you  think  I  discuss  the  question  fairly. 


612  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

I  consider,  O  Athenians,  that  all  persons  who  desire  to  become 
citizens  out  of  love  for  our  customs  and  our  laws,  on  being  admitted 
to  these,  would  at  the  same  time  settle  among  us  and  partake  the 
benefits  which  they  coveted.  Those  who  have  no  love  or  admira- 
tion for  your  institutions,  but  regard  only  the  advantage  which 
they  get  by  appearing  to  be  honoured  by  you,  they,  I  expect,  or 
rather  I  am  quite  certain,  whenever  they  spy  a  hope  of  greater 
advantage  elsewhere,  will  run  after  that  without  troubling  them- 
selves in  the  least  about  you.  For  example  —  that  you  may  see  to 
what  I  allude  —  this  Python,  when  he  had  just  killed  Cotys, 
and  did  not  think  it  safe  to  go  to  every  place,  came  to  you  and 
requested  you  to  make  him  a  citizen,  and  preferred  you  to  all 
the  world :  but  now  that  he  thinks  Philip's  connexion  suits  him 
better,  he  cares  not  an  atom  for  you  but  attaches  himself  to  him. 
For  with  those  who  live  for  ambitious  objects  there  is  nothing, 
men  of  Athens,  there  is  nothing  stable  or  honest :  you  must  get  the 
better  of  them,  if  you  are  wise,  by  taking  precaution,  not  trust 
them  first  and  accuse  them  afterwards.  Could  we  assume  there- 
fore, O  Athenians,  contrary  to  the  fact,  that  Charidemus  himself 
has  been  and  is  and  will  be  true  to  our  interests,  and  will  never 
alter  his  views,  you  ought  not  to  vote  him  these  privileges  any  the 
more.  If  indeed  he  were  getting  the  protection  of  the  decree 
for  any  other  purpose  than  to  aid  Cersobleptes,  it  would  not 
have  been  so  bad :  but  I  find  upon  calculation,  that  the  person 
for  whom  he  will  use  the  advantage  given  by  the  decree  is  not 
worthy  to  be  trusted  either  by  us  or  by  him.  .  .  . 


But  besides  that  the  decree  is  impolitic,  I  must  inform  you  that 
it  is  not  for  the  honour  of  Athens,  that  she  should  be  known  to  have 
decreed  such  a  thing.  If  the  decree,  O  Athenians,  had  been  for 
the  benefit  of  a  man  residing  in  a  city  and  living  under  constitu- 
tional government,  bad  as  it  is,  it  would  have  been  less  disgraceful : 
but  it  has  been  drawn  in  favour  of  Charidemus,  who  resides  in  no 
city  at  all,  but  is  the  general  of  a  Thracian  and  a  prince,  whose 
royal  authority  he  uses  to  commit  acts  of  injustice.  Of  course  you 
know,  that  all  these  mercenary  leaders  seize  upon  Greek  cities  and 
endeavour  to  establish  their  own  dominion :  if  the  truth  is  to  be 
spoken,  they  go  about  everywhere  the  common  enemies  of  all  who 
wish  to  live  as  freemen  under  the  laws  of  their  country.  Is  it 
becoming  then  or  honourable  in  you,  O  Athenians,  to  have  passed 
this  vote  before  all  the  world,  giving  protection  to  a  man  who  will  plot 


Chap.  XXIII,  §3.]      ORATION  AGAINST  ARISTOCRATES  613 

against  the  first  people  he  meets  for  his  own  selfish  purposes,  and 
to  have  proclaimed  that  those  who  defend  their  own  liberties  shall 
be  excluded  from  your  alliance?  I  do  not  conceive  that  it  is 
either  honourable  or  worthy  of  you.  Can  it  be  otherwise  than 
disgraceful,  when  you  reproach  the  Lacedaemonians  for  making 
those  terms  which  put  the  Asiatic  Greeks  under  the  power  of  the 
king,  that  you  should  yourselves  surrender  to  Cersobleptes  the 
Europeans  and  all  whom  Charidemus  thinks  he  can  master  ? 
For  this  decree  does  nothing  less,  when  it  is  not  defined  what  his 
general  may  do  or  may  not  do,  but  all  who  defend  themselves  are 
threatened  with  such  fearful  consequences. 

Again,  O  Athenians,  I  would  remind  you  of  an  actual  occurrence, 
by  which  you  will  still  more  clearly  see  how  absolutely  necessary 
it  is  to  rescind  this  decree.  On  a  certain  occasion  once  you  made 
Ariobarzanes  a  citizen,  and  Philiscus  also  on  his  account,  just  as 
now  you  have  made  Charidemus  on  account  of  Cersobleptes. 
Philiscus,  resembling  this  man  in  his  principles  of  action,  got  posses- 
sion of  Greek  cities  by  the  power  of  Ariobarzanes,  took  up  his 
quarters  in  them  and  committed  divers  atrocities,  outraging  free 
women  and  children,  and  doing  all  that  a  man  brought  up  in 
ignorance  of  laws  and  civil  government  would  do,  if  armed  with 
authority.  Well :  in  Lampsacus  there  are  found  two  men ; 
(one  was  named  Thersagoras,  and  the  other  Execestus;)  who, 
holding  the  same  sentiments  as  our  own  people  about  tyrants,  kill 
Philiscus,  as  they  were  right  to  do,  under  a  sense  of  their  obligation 
to  free  their  country.  Suppose  any  of  the  orators,  who  supported 
Philiscus  at  the  time  when  he  was  giving  pay  to  the  mercenaries 
in  Perinthus,  when  he  was  master  of  all  the  Hellespont  and  the 
most  powerful  of  the  lieutenants,  had  proposed  as  Aristocrates 
has  now,  that  whoever  killed  Philiscus  might  lawfully  be  appre- 
hended in  the  territory  of  our  allies ;  see,  by  heavens,  into  what 
disgrace  our  commonwealth  would  have  fallen  !  Thersagoras  and 
Execestus  came  to  Lesbos  and  resided  there :  had  any  of  the 
friends  or  children  of  Philiscus  laid  hands  upon  either  of  them,  he 
must  have  been  given  up  by  virtue  of  your  decree.  Would  not 
your  conduct  have  been  shameful  and  dreadful,  O  Athenians,  if, 
while  you  set  up  in  brass  and  reward  with  the  highest  honours 
those  who  have  performed  such  a  feat  at  Athens,  you  had  pro- 
scribed as  outlaws  men  of  other  countries  who  showed  the  same 
devotion  to  their  fatherland?  Happily  in  the  case  of  Philiscus 
you  were  not  thus  imposed  upon,  and  did  not  incur  the  shame : 
in  this  case,  if    you  take  my  advice,  you  will   guard  against  it. 


614  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

For  when  nothing  is  defined,  but  the  clause  is  simply  "  if  any  one 
shall  kill  Charidemus,"  very  possibly  something  of  this  kind  might 
occur. 

I  would  now  briefly  examine  the  conduct  of  Charidemus,  and 
expose  the  outrageous  impudence  of  his  panegyrists.  One  thing 
I  promise  you  —  and  let  no  man  be  offended  at  the  promise  —  I 
will  show  not  merely  that  he  is  unworthy  of  the  protection  which 
Aristocrates  has  given  him,  but  that  he  deserves  the  severest 
chastisement,  if  men  do  deserve  to  be  punished  who  have  evil 
intentions,  who  impose  upon  you,  who  invariably  take  part  against 
you.  Some  of  you  perhaps,  considering  that  the  man  has  been 
made  a  citizen  and  afterwards  honoured  with  golden  crowns  as  a 
benefactor,  wonder  how  such  gross  deception  could  have  been 
practised  upon  you  so  easily.  Be  assured,  men  of  Athens,  it  has 
been  practised  :  how  you  have  not  unnaturally  fallen  into  the  error, 
I  will  explain  to  you.  The  reason  is  that,  while  you,  men  of 
Athens,  judge  rightly  of  many  things,  you  do  not  use  your  judg- 
ment consistently.  For  instance,  what  do  I  mean  ?  If  you  were 
asked,  which  of  all  classes  in  the  state  you  regard  as  the  vilest,  you 
would  not  say  the  agriculturists,  nor  the  merchants,  nor  the  mining 
people,  nor  any  of  that  kind ;  but  if  any  one  said,  the  persons  who 
are  accustomed  to  make  speeches  and  motions  for  hire,  I  am  sure 
it  would  meet  with  your  assent.  Up  to  this  point  therefore  you 
judge  well ;  not  so  rightly  in  what  follows :  for  on  those,  whom 
you  think  the  most  worthless  of  men,  you  depend  for  a  correct 
estimate  of  every  one's  character ;  and  they  tell  you  that  a  man 
is  good  or  bad,  whom  it  suits  their  purpose  to  call  such,  not  whom 
it  is  right  and  proper  :  which  is  exactly  what  the  orators  have  done 
all  along  with  this  Charidemus,  as  you  will  agree  with  me,  when 
you  have  heard  my  account  of  his  actions. 

The  campaigns  which  he  has  served  against  Athens  originally 
as  a  slinger  and  light-armed  soldier  I  do  not  set  down  as  an  offence, 
nor  the  fact  that  he  once  kept  a  pirate  vessel  and  plundered  your 
allies.  I  pass  by  all  this.  Why?  Because,  men  of  Athens,  the 
pressure  of  necessity  destroys  all  calculations  about  right  and 
wrong,  so  that  a  man  who  judges  fairly  must  not  take  a  nice  ac- 
count of  such  things.  But  let  me  explain  how  he  began  to  do  you 
injury  when  he  was  a  mercenary  leader  and  at  the  head  of  some 
troops.  First  of  all,  he  was  hired  by  Iphicrates,  and  served  under 
him  for  more  than  three  years.  When  you  deposed  Iphicrates 
from  his  command,  and  sent  out  Timotheus  to  conduct  the  war 
against  Amphipolis  and  Chersonesus,  those  Amphipolitan  hostages 


Chap.  XXIII,  §  3.]       ORATION  AGAINST  ARISTOCRATES  615 

whom  Iphicrates  had  received  from  Harpalus  and  entrusted  to  his 
charge,  although  you  passed  a  resolution  requiring  him  to  bring 
them  to  Athens,  he  delivered  up  to  the  Amphipolitans ;  and  that 
prevented  your  taking  Amphipolis.  When  Timotheus  offered 
again  to  hire  him  and  his  troops,  he  declines  the  engagement  with 
him,  but  sailed  away  with  your  pinnaces  to  Cotys,  whom  he  knew 
for  certain  to  be  your  greatest  enemy.  Afterwards,  when  Timo- 
theus resolved  to  commence  the  war  against  Amphipolis  before 
that  against  Chersonesus,  and  he  had  no  opportunity  of  doing 
you  any  mischief  there,  he  hires  himself  again  to  the  Olynthians 
your  enemies,  and  to  those  who  held  Amphipolis  at  that  time. 
On  his  passage  thither,  having  set  sail  from  Cardia  to  fight  against 
us,  he  was  taken  by  our  galleys  :  but  on  account  of  the  emergency 
and  our  wanting  soldiers  for  the  war  against  Amphipolis,  instead 
of  his  being  punished  for  not  having  given  up  the  hostages  and  for 
deserting  and  carrying  the  vessels  to  Cotys  your  enemy  he  ex- 
changed pledges  and  served  on  your  side.  And  for  the  very  thing 
which  he  should  have  been  grateful  to  you  for,  not  having  been 
put  to  death  as  he  deserved,  the  commonwealth,  as  if  she  were 
under  an  obligation,  has  given  him  crowns  and  citizenship  and 
what  you  all  know. 


It  is  worth  your  while  also  to  inquire,  O  Athenians,  how  it  was 
that  our  ancestors  awarded  recompenses  and  honours  to  real  bene- 
factors, whether  they  were  citizens  or  strangers.  And  if  you  see 
that  they  awarded  them  better  than  you,  it  will  be  well  to  imitate 
them ;  if  you  find  your  own  method  the  best,  you  can  go  on  with 
it.  In  the  first  place,  Themistocles  who  gained  the  naval  fight  at 
Salamis,  and  Miltiades  who  commanded  at  Marathon,  and  many 
others  whose  services  are  not  on  a  level  with  those  of  modern 
generals,  were  not  set  up  in  brass  by  your  ancestors,  nor  received 
from  them  any  extraordinary  homage.  Were  your  ancestors  then 
not  grateful  to  their  benefactors  ?  Assuredly  they  were,  O  Athe- 
nians :  and  they  showed  their  gratitude  in  a  manner  worthy  both 
of  themselves  and  them :  for,  high  as  were  the  merits  of  all,  they 
elected  these  to  be  their  leaders ;  and  to  the  wise,  who  will  look  at 
the  truth  of  things,  it  is  a  far  greater  honour  than  a  brazen  statue, 
to  be  placed  at  the  head  of  brave  and  honourable  men.  Verily, 
O  Athenians,  your  ancestors  renounced  not  their  share  in  any 
of  those  glories ;  and  there  is  no  one  who  will  attribute  the  battle 
of  Salamis  to  Themistocles,  but  to  the  Athenians,  nor  the  battle 


616  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

of  Marathon  to  Miltiades,  but  to  the  commonweahh.  But  now, 
O  Athenians,  people  say  that  Timotheus  took  Corcyra,  and  Iphi- 
crates  cut  in  pieces  the  Spartan  division,  and  Chabrias  won  the 
seafight  at  Naxos ;  for  you  seem  yourselves  to  resign  the  merit  of 
those  exploits  by  the  extravagance  of  the  honours  which  you  have 
given  to  each  of  these  men  on  their  account. 

Thus  honourably  and  advantageously  for  themselves  did  they 
bestow  their  political  rewards;  thus  injudiciously  do  we.  But 
how  the  rewards  of  strangers  ?  Our  forefathers,  when  Menon  the 
Pharsalian  had  given  ten  talents  in  money  for  the  war  at  Eion  by 
Amphipolis,  and  succoured  you  with  three  hundred  cavalry  of  his 
own  retainers,  did  not  pass  a  decree,  that  whoever  killed  him  should 
be  liable  to  arrest,  but  gave  him  citizenship,  and  held  that  honour 
to  be  sufficient.  And  again  when  Perdiccas,  who  reigned  in 
Macedonia  at  the  time  of  the  barbarian  invasion,  destroyed  the 
barbarians  retreating  from  Platsea,  and  completed  the  disaster  of 
the  king,  they  did  not  pass  a  decree,  that  any  one  should  be  liable 
to  arrest  if  he  killed  Perdiccas,  by  whom  war  had  been  declared 
against  the  king  on  our  account ;  but  they  gave  him  citizenship 
only.  For  then  indeed  so  valuable  was  Athenian  citizenship 
esteemed  by  all  men,  that,  in  order  to  obtain  it,  they  were  willing 
to  render  such  important  services;  while  now  it  is  so  worthless, 
that  many  of  your  adopted  citizens  have  done  you  more  mischief 
than  open  enemies.  And  not  only  has  this  gift  of  the  common- 
wealth become  vile  and  contemptible,  but  all  have  become  so 
through  the  wickedness  of  the  detestable  and  accursed  orators, 
who  draw  up  these  decrees  without  scruple ;  who  have  carried  their 
disgraceful  cupidity  to  such  an  excess,  that,  like  men  who  put  up 
wretched  trumpery  for  auction,  they  sell  your  honours  and  rewards 
at  the  cheapest  prices,  drawing  for  a  number  of  people  on  the  same 
terms  any  decree  they  like  to  have. 

First  —  that  I  may  begin  with  the  latest  examples  —  they  not 
only  accorded  to  Ariobarzanes  and  his  sons,  three  in  number, 
everything  which  they  desired,  but  associated  with  him  two  citi- 
zens of  Abydus,  deadly  enemies  of  Athens  and  men  of  the  worst 
character,  Philiscus  and  Agavus.  Again  —  when  Timotheus  was 
considered  to  have  rendered  you  good  service,  besides  conferring 
upon  him  all  the  highest  distinctions,  they  associated  with  him 
Phrasierides  and  Polysthenes,  who  were  not  even  freemen,  but 
rascals  who  had  done  such  things  as  decency  forbids  to  mention. 
And  on  this  last  occasion,  when  they  were  for  giving  such  honours 
as  they  thought  fit  to  Cersobleptes,  and  were  intent  upon  that 


Chap.  XXIII,  §  3.]      ORATION  AGAINST  ARISTOCRATES  617 

object,  they  associate  with  him  two  persons,  one  of  whom  has  done 
all  the  mischief  that  you  have  heard,  and  the  other,  a  man  named 
Euderces,  no  one  knows  anything  about.  It  is  from  such  causes, 
O  Athenians,  that  what  was  great  heretofore  appears  little  now, 
and  the  thing  is  progressing  even  still  further,  and  these  distinctions 
are  no  longer  sufficient,  but,  unless  you  guard  the  persons  of  each 
of  these  men,  there  is  no  thanks,  it  would  seem,  for  what  you  have 
done  before. 

That  things  have  come  to  this  disgraceful  pass,  if  the  truth 
must  be  spoken  with  freedom,  is  owing,  men  of  Athens,  prin- 
cipally to  yourselves.  For  you  like  no  longer  even  to  bring  offend- 
ers to  justice,  but  the  practice  is  gone  out  of  the  commonwealth. 
Yet  look  how  your  ancestors  chastised  those  who  offended  them, 
and  see  whether  they  did  it  in  your  style.  When  they  found 
Themistocles  arrogating  superiority  oyer  them,  they  banished 
him  from  the  city,  and  condemned  him  for  correspondence  with 
the  Mede.  And  Cimon,  because  he  stirred  up  of  his  own  authority 
a  revolution  at  Paros,  they  fined  fifty  talents,  and  were  within 
three  votes  of  condemning  him  to  death.  So  they  dealt  with  men 
who  had  conferred  on  them  such  mighty  obligations.  Justly ! 
They  would  not  barter  to  them  for  what  they  had  done  their  own 
freedom  and  magnanimity;  but  honoured  them  only  while  they 
were  upright,  and  restrained  their  criminal  attempts.  You,  O 
Athenians,  acquit  men  who  are  guilty  and  plainly  proved  to  be 
guilty  of  the  gravest  offences,  if  they  merely  say  one  or  two  witty 
things,  and  some  fellow-tribesmen  chosen  to  be  their  advocates 
petition  for  them :  should  you  even  convict  any  one,  you  fix  the 
penalty  at  five-and-twenty  drachms. 

In  former  times  the  state  herself  was  wealthy  and  flourishing, 
and  no  individual  was  raised  above  the  multitude.  Is  proof 
wanting?  Whoever  knows  the  style  of  house  which  Themis- 
tocles had,  and  Miltiades,  and  the  illustrious  of  that  day,  per- 
ceives it  to  have  been  no  grander  than  that  of  the  multitude, 
while  the  public  structures  and  edifices  are  so  magnificent  and 
beautiful,  that  room  is  not  left  for  any  succeeding  generation  to 
surpass  them :  yonder  gateway,  docks,  porticoes,  the  Piraeus,  all 
the  fabrics  by  which  you  see  the  city  adorned.  Now  each  of  your 
statesmen  has  a  private  fortune  so  immense^  that  some  of  them 
have  built  their  houses  more  splendid  than  many  public  edifices, 
some  have  bought  up  a  quantity  of  land,  more  than  all  you  in  the 
court  have  amongst  you :  while,  as  to  the  state  buildings  which 
you  put  up  and  whitewash,  I  am  ashamed  to  say  how  paltry  and 


618  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

miserable  they  are.  But  can  you  mention  aught  that  you  have 
won  as  a  people  and  will  bequeath,  as  your  forefathers  bequeathed 
Chersonesus,  Amphipolis,  the  glory  of  noble  actions  ?  —  glory 
which  politicians  of  this  stamp,  with  all  the  waste  they  make  of  it, 
are  unable  to  extinguish,  O  Athenians,  and  no  wonder.  For 
Aristides  then,  who  was  empowered  to  assess  the  tribute,  did 
not  increase  his  fortune  by  a  single  drachm ;  but,  when  he  died,  the 
country  buried  him;  and  you,  whenever  you  required  anything, 
had  ampler  funds  in  your  treasury  than  all  the  rest  of  the  Greeks, 
so  that,  for  whatsoever  period  you  voted  an  expedition,  you  went 
out  with  pay  for  the  whole  time.  Now  the  persons  who  manage 
our  state  affaii;s  have  risen  from  indigence  to  wealth,  and  provided 
themselves  with  plenty  to  last  them  for  support ;  whilst  you  have 
not  provisions  in  your  stores  for  a  single  day,  but,  when  anything 
is  to  be  done,  you  are  destitute  of  means.  For  the  people  were 
formerly  masters  of  the  statesmen,  but  now  are  their  servants. 
The  fault  is  theirs  who  propose  such  decrees,  and  accustom  you  to 
despise  yourselves  and  hold  one  or  two  individuals  in  respect. 
These  persons  then  become  the  heirs  of  your  renown  and  your 
possessions ;  you  have  not  the  least  enjoyment  of  them,  but  are 
witnesses  of  the  prosperity  of  others,  and  come  in  for  nothing  but 
to  be  cheated.  How  deep  would  be  the  groaning  of  those  men  who 
died  for  freedom  and  for  glory,  who  left  memorials  of  so  many  noble 
deeds,  could  they  see  that  Athens  has  acquired  the  rank  and  style 
of  a  dependent,  and  is  deliberating  whether  she  must  guard  the 
person  of  Charidemus  !     Charidemus  !  alas  the  day  ! 

And  yet  this  is  not  the  cruel  part  of  it,  that  we  deliberate  less 
wisely  than  our  forefathers,  whose  merits  are  transcendent,  but 
that  we  do  it  worse  than  any  people.  Is  it  not  disgraceful  —  when 
these  ^ginetans,  inhabiting  so  small  an  island  and  having  no 
reason  to  be  proud  themselves,  have  not  even  to  this  day  made  a 
citizen  of  Lampis,  who  is  the  largest  shipowner  in  Greece  and  who 
has  embellished  their  city  and  port,  but  have  with  much  reluctance 
granted  him  exemption  from  the  alien-tax  —  when  these  accursed 
Megarians  so  well  maintain  their  own  dignity,  that  when  the  Lace- 
daemonians sent  and  requested  them  to  make  Hermon  the  pilot  a 
citizen,  who  with  Lysander  captured  two  hundred  ships  on  the 
occasion  of  our  disaster  at  iEgos-Potamos,  they  replied  that,  when 
they  saw^him  created  a  Spartan,  they  would  themselves  create 
him  a  Megarian  —  and  when  the  Orites,  inhabiting  only  a  fourth 
part  of  Eubcea,  have  so  treated  this  very  Charidemus,  whose 
mother  is  a  citizen  there,  (who  and  what  his  father  is,  I  will  not 


Chap.  XXIII,  §  3.]       ORATION  AGAINST  ARISTOCRATES  619 

say ;  for  we  need  not  make  too  minute  inquiries  about  him :) 
however,  although  he  himself  finds  one-half  of  his  pedigree,  they 
have  not  to  this  day  conceded  to  him  the  other  half,  but  he  is 
classed  there  among  the  illegitimate,  just  as  here  formerly  the 
illegitimate  were  registered  in  Cynosarges  —  I  say,  is  it  not  dis- 
graceful that  you,  men  of  Athens,  after  imparting  to  him  your  full 
franchise  and  conferring  other  honours,  should  give  him  this  also 
in  addition  ?  For  what  reason  ?  What  ships  did  he  ever  capture 
for  your  benefit,  that  he  is  plotted  against  by  the  losers  ?  What 
city  has  he  ever  taken  and  delivered  into  your  hands?  What 
perils  has  he  encountered  for  your  sake  ?  What  enemies  of  yours 
has  he  adopted  for  his  own  ?    No  one  can  say. 

I  wish,  before  I  sit  down,  men  of  the  jury,  to  say  a  few  words 
to  you  about  the  laws  which  we  have  exhibited  :  bearing  them  in 
mind,  I  think  you  will  better  be  able  to  watch  these  men,  should 
they  attempt  to  mislead  and  impose  on  you.  The  first  law  has 
positively  declared,  that,  if  any  one  kill  another,  the  council 
shall  have  cognizance :  Aristocrates  after  the  words,  "  if  any  one 
shall  kill,"  has  immediately  added,  that  he  may  be  lawfully  appre- 
hended. Keep  this  in  your  remembrance,  that  to  try  a  man,  and 
to  proscribe  him  without  allowing  trial,  are  the  most  opposite 
things  in  the  world.  Again,  the  second  law  forbids  one  to  ill- 
use  or  extort  money  from  even  a  convicted  murderer :  the  de- 
fendant, in  making  him  liable  to  arrest,  has  allowed  all  these  things ; 
for  it  will  be  in  the  power  of  the  captors  to  do  what  they  please. 
The  law  requires  him  to  be  carried  before  the  Judges,  even  though 
he  be  taken  in  the  native  land  of  the  deceased :  Aristocrates  has 
permitted  the  very  man  who  brings  the  charge  to  carry  him  to  his 
own  house,  even  though  he  has  taken  him  in  a  foreign  country. 
There  are  certain  offences  for  which  the  law  has  given  permission 
to  take  life :  Aristocrates,  without  any  preamble,  even  if  life  be 
taken  under  such  circumstances,  gives  up  to  punishment  a  man 
whom  the  law  lets  off  with  impunity.  If  such  misfortune  has 
occurred  to  any  one,  the  law  requires  that  satisfaction  shall  first 
be  demanded :  Aristocrates  on  the  contrary,  without  himself 
appointing  any  trial,  without  demanding  satisfaction  from  the 
persons  against  whom  his  claim  is,  declares  at  once  that  the  homi- 
cide may  be  arrested,  and,  whoever  attempts  to  rescue  him,  he 
excludes  that  instant  from  the  benefit  of  our  alliance.  "  The  laws 
ordain  that  hostages  to  the  number  of  three  may  be  taken  from  the 
people  among  whom  the  homicide  dwells,  if  they  refuse  to  render 
justice :    the  defendant,  if  any  one  should  rescue  him  from  the 


620  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

captor,  not  liking  to  give  him  up  before  judgment,  excludes  him 
from  our  alliance  immediately.  The  legislator  forbids  any  one  to 
introduce  a  law,  unless  he  make  it  the  same  for  all :  the  defendant 
frames  a  special  decree  for  an  individual.  The  law  does  not 
permit  a  decree  to  be  of  greater  validity  than  a  law :  Aristocrates, 
when  so  many  laws  are  in  existence,  annuls  them,  and  establishes 
a  decree. 

Keep  these  things  in  your  memory  while  you  sit  in  judgment. 
Reject,  refuse  to  hear  the  arguments  by  which  they  will  strive 
to  lead  you  astray,  but  bid  them  show  you,  where  he  has  ordered 
any  trial,  or  where  he  has  said  that  the  party  convicted  of  murder 
shall  suffer  the  penalty.  Had  he  either  said  that  any  party  tried 
and  condemned  elsewhere  should  be  punished,  or  himself  appointed 
a  trial  to  determine  the  fact  of  homicide,  or  whether  it  were  justi- 
fiable or  unjustifiable,  he  would  have  done  no  wrong.  But  when 
after  employing  the  simple  term  of  accusation,  "if  any  one  shall 
kill,"  and  omitting  to  add,  "and  shall  be  convicted  of  murder,"  or 
"shall  be  adjudged  to  have  killed,"  or  "let  him  submit  to  judgment 
for  the  murder,"  or  "he  shall  be  amenable  to  the  same  penalty  as 
if  he  killed  an  Athenian"  —  omitting  (in  short)  everything  that 
is  just  —  he  has  inserted  a  clause  for  the  arrest  of  the  homicide ; 
do  not  be  imposed  on,  but  rest  assured  that  his  decree  is  a  most 
complete  violation  of  law. 

.      Section  4.     ROMAN 
NO.  1.    GAIUS:   THE  SACRAMENTAL  ACTION  ^ 
Book  IV  (De  Actionibus) 
Legis  Actiones 

There  are,  moreover,  some  actions  which  are  formed  on  the 
model  of  a  legis  actio,  and  others  which  have  an  independent 
existence  and  force.  To  make  this  clear  we  must  in  the  first  in- 
stance treat  of  the  legis  actiones. 

The  actions  in  use  in  the  time  of  the  ancients  were  styled  legis 
actiones,  either  because  they  were  enacted  by  the  leges,  for,  in 

]  [Reprinted  from  "Outline  of  Roman  History  from  Romulus  to  Jus- 
tinian" (including  translations  of  the  Twelve  Tables,  the  Institutes  of 
Gains,  and  the  Institutes  of  Justinian),  by  David  Nasmith,  Q.C,  LL.B. 
(London,  Butterworths,  1890). 

Little  is  known  of  the  life  of  Gains.  He  was  born  about  110  a.d. 
and  died  about  180.  His  "Institutes, "  which  were  the  foundation  of  Jus- 
tinian's "Institutes,"  were  not  brought  to  light  until  their  discovery  by 
Niebuhr  at  Verona  in  1816.1 


Chap.  XXIII,  §4,  1.]  THE   SACRAMENTAL  ACTION  621 

those  days,  the  edicts  of  the  prsetors  to  which  many  actions  owe 
their  origin  were  not  in  existence ;  or  because  they  were  adapted 
to  the  words  of  the  leges,  and  their  terms  were  adhered  to  as 
rigidly  as  those  of  the  leges  themselves.  Hence,  when  in  an  action 
brought  for  cutting  down  vines,  the  plaintiff,  in  his  plaint,  used 
the  word  "  vites  "  instead  of  ^'  arbor es,"  it  was  held  that  the  action 
must  be  dismissed,  as  "  arbores  "  is  the  word  used  in  the  law  of  the 
Twelve  Tables  concerning  cutting  down  trees  in  general,  and  upon 
which  the  action  was  founded. 

There  were  five  forms  of  the  legis  actio,  viz.,  sacramentum, 
jvdicis  postulatio,  condictio,  manus  injectio,  and  pignoris  captio. 

Sacramentum 

The  actio  sacramenti  was  general,  and  was  used  whenever  the 
law  had  not  expressly  provided  another  form.  This  form  of  ac- 
tion was  as  perilous  for  the  party  in  the  wrong  as  is  our  present 
actio  certcB  creditoe  pecunice,  on  account  of  the  sponsio,  the  risk 
of  which  was  run  by  the  defendant  who  defended  vexatiously,  and 
on  account  of  the  restipulatio,  the  risk  of  which  was  run  by  the 
plaintiff  who  made  an  unfounded  claim.  The  unsuccessful  party 
forfeited  the  amount  of  the  sacramentum  to  the  public  treasury  by 
way  of  penalty,  for  the  securing  of  which  sureties  were  given 
to  the  prgetor ;  whereas,  now,  the  penalty  of  the  sponsio  and  the 
restipulatio  goes  to  the  successful  party. 

The  amount  of  the  sacramentum  was  either  500  or  50  o^ses  — 
500  when  the  value  of  the  subject-matter  in  dispute  was  1000 
a^ses,  or  more ;  50  when  its  value  w  as  below  that  amount.  Such 
were  the  provisions  of  the  Twelve  Tables.  But  if  the  matter  in 
question  was  the  liberty  of  a  man,  though  the  man  might  be  of 
the  greatest  value,  yet  it  was  provided  by  the  same  law  that  the 
sacramentum  should  be  50  asses.  The  object  being  that  the 
vindex  or  asserter  of  liberty  should  not  be  fettered  by  the  necessity 
to  find  security  for  a  heavy  amount.  .  .  . 

...  to  come  and  receive  a  judex.  The  litigants  having  pre- 
sented themselves  at  the  time  stated,  a  judex  was  assigned  to  them, 
in  compliance  with  their  request,  from  the  numbers  of  the  decem- 
virs, to  take  the  case  thirty  days  after,  according  to  the  provisions 
of  the  lex  Pinaria.  Before  the  passing  of  that  lex  it  was  not  the 
practice  to  assign  a  judex.  We  have  already  said  that  if  the  value 
of  the  matter  in  dispute  was  less  than  1000  asses,  the  sacramen- 
tum was  50  and  not  500  asses.    When,  however,  it  became  the 


622  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

practice  to  assign  a  judex,  the  parties  gave  each  other  notice  to 
appear  before  him  on  the  next  day  but  one.  When,  then,  before 
him,  each  party  stated  the  points  of  his  case,  this  was  termed  the 
causae  collectio,  i.e.,  a  short  outhne  of  the  case  of  each. 

If  the  action  was  in  rem  for  a  movable  or  moving  thing  that 
could  be  brought  into  court,  the  thing  itself  was  brought  before 
the  judex,  and  was  there  claimed  in  the  following  manner :  — 
The  claimant,  holding  a  wand,  laid  his  hand  on  the  thing  claimed, 
for  example,  a  slave,  and  said,  "  I  declare  this  man  to  be  my  prop- 
erty ex  jure  Quiritium  in  accordance  with  his  status  {secundum 
suam  causam)  as  I  have  declared  it."  Then,  touching  him  with 
his  wand,  he  said,  "  See,  I  lay  my  wand  upon  him."  His  adver- 
sary, in  his  turn,  employed  the  same  words  and  acts.  Each  having 
thus  asserted  his  claim,  the  praetor  said,  "  Let  go  the  man,  both 
of  you  {Mittite  ambo  hominem)."  Whereupon  each  did  so.  He 
w^ho  had  first  asserted  his  claim  then  said  to  the  other,  "  State 
the  grounds  of  your  claim."  The  other  replied,  "  I  have  satisfied 
the  law,  having  placed  my  rod  upon  him."  Then  the  first  claims 
ant  said,  '*  Mark  you,  as  you  have  made  an  unjust  claim,  I  chal- 
lenge you  to  deposit  500  asses."  His  adversary  then  said,  "  I  too 
challenge  you."  The  asses  thus  deposited  w^ere  styled  the  sacra- 
mentum.  The  remaining  formalities  were  the  same  as  those  used 
in  an  action  in  personam;  the  praetor  then  assigned  the  vindicce 
to  one  of  the  parties,  i.e.,  he  gave  to  one  of  them  the  interim  pos- 
session of  the  subject  of  the  litigation,  ordering  him  at  the  same 
time  to  give  sureties  litis  et  vindiciarum,  i.e.,  for  the  thing  in  dis- 
pute and  the  mesne  profits,  or  the  value  of  the  interim  possession, 
in  the  event  of  losing  the  case.  The  praetor  also  took  other  sureties 
for  the  sacramentum  from  each  party,  inasmuch  as  that  went  to 
the  treasury.  The  wand  was  used  instead  of  the  spear,  —  the 
emblem  of  legal  title,  —  for,  in  the  estimation  of  the  ancients,  no 
title  was  more  indefeasible  than  that  of  capture  from  the  enemy. 
This  is  the  reason  why  the  spear  is  set  up  in  front  of  the  courts  of 
the  centumviri. 

If  the  nature  of  the  object  in  dispute  was  such  as  to  prevent 
its  being  brought  into  court  without  inconvenience  —  for  in- 
stance, if  it  were  a  column,  or  a  herd  of  cattle  —  some  portion 
was  taken  into  court,  and  the  claim  was  made  upon  the  part  in 
the  name  of  the  whole.  Thus,  in  the  case  of  a  herd,  one  sheep, 
or  one  goat,  out  of  the  flock,  was  led  into  court,  or,  perhaps,  a 
lock  of  wool  merely  taken  from  one  of  the  beasts ;  whilst,  from  a 
ship,  or  a  column,  a  portion  was  broken  off ;   so  if  the  matter  in 


Chap.  XXIII.  §  4,  2.]  ORATION   FOR  MILO  623 

dispute  was  a  field,  or  a  house,  or  even  an  inheritance,  some  part 
was  taken  therefrom  and  brought  into  court ;  and  the  claim  was 
made  on  that  part  as  if  the  whole  had  been  present ;  e.g.,  a  clod 
was  taken  from  the  field,  or  a  tile  from  the  house ;  so  if  the  dis- 
pute was  about  an  inheritance. 

NO.  2.    THE  SPEECH  OF  M.   T.   CICERO  IN  DEFENCE  OF 
TITUS  ANNIUS  MILO  i 

The  Argument 

Titus  Annius  Milo,  often  in  the  following  speech  called  only  Titus 
Annius,  stood  for  the  consulship  while  Clodius  was  a  candidate  for  the  prae- 
torship,  and  daily  quarrels  took  place  in  the  streets  between  their  armed 
retainers  and  gladiators.  Milo,  who  was  dictator  of  Lanuvium,  his  native 
place,  was  forced  to  go  thither  to  appoint  some  priests,  etc. ;  and  Clodius, 
who  had  been  to  Aricia,  met  him  on  his  road.  Milo  was  in  his  carriage 
with  his  wife,  and  was  accompanied  by  a  numerous  retinue,  among  whom 
were  some  gladiators.  Clodius  was  on  horseback,  with  about  thirty  armed 
men.  The  followers  of  each  began  to  fight,  and  when  the  tumult  had  be- 
come general,  Clodius  was  slain,  probably  by  Milo  himself.  The  disturb- 
ances at  Rome  became  so  formidable  that  Pompey  was  created  sole  consul ; 
and  soon  after  he  entered  on  his  office,  a.u.c.  702,  Milo  was  brought  to 
trial.  This  speech,  however,  though  composed  by  Cicero,  was  not  spoken 
[in  its  present  form],  for  he  was  so  much  alarmed  by  the  violence  of  Clodius's 
friends,  that  he  did  not  dare  to  use  the  plain  language  he  had  proposed. 
Milo  was  convicted  and  banished  to  Marseilles. 

1.  Although  I  am  afraid,  O  judges,  that  it  is  a  base  thing  for 
one  who  is  beginning  to  speak  for  a  very  brave  man  to  be  alarmed, 
and  though  it  is  far  from  becoming,  when  Titus  Annius  Milo 
himself  is  more  disturbed  for  the  safety  of  the  republic  than  for  his 
own,  that  I  should  not  be  able  to  bring  to  the  cause  a  similar  great- 
ness of  mind,  yet  this  novel  appearance  of  a  new  ^  manner  of  trial 
alarms  my  eyes,  which,  wherever  they  fall,  seek  for  the  former 
customs  of  the  forum  and  the  ancient  practice  in  trials.  For 
your  assembly  is  not  surrounded  by  a  circle  of  bystanders  as  usual ; 
we  are  not  attended  by  our  usual  company.^ 

2.  For  those  guards  which  you  behold  in  front  of  all  the  temples, 
although  they  are  placed  there  as  a  protection  against  violence, 
yet  they  bring  no  aid  to  the  orator ;  so  that  even  in  the  forum  and 

1  [Translated  by  C.  D.  Yonge,  B.A.  ("Cicero's  Orations,"  Vol.  Ill, 
pp.  390-437,  Bell  &  Daldy,  London,  1871).  Cicero  was  born  Jan.  3, 
106  B.C.  and  was  assassinated  Dec.  7,  43  b.c] 

2  This  was  an  extraordinary  trial,  held  under  a  new  law  just  passed 
by  Pompey ;  and  it  was  presided  over,  not  by  the  praetor,  but  by  Lucius 
Domitius  Ahenobarbus,  who  was  expressly  appointed  by  the  comitia 
president  of  the  judges  on  this  occasion. 

3  Pompey  was  present  at  the  trial,  surrounded  by  his  officers,  and  he 
had  filled  the  forum  and  all  its  precincts  with  armed  men,  for  the  sake  of 
keeping  the  peace. 


624  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

in  the  court  of  justice  itself,  although  we  are  protected  with  all 
salutary  and  necessary  defences,  yet  we  cannot  be  entirely  without 
fear.  But  if  I  thought  this  adverse  to  Milo,  I  should  yield  to  the 
times,  O  judges,  and  among  such  a  crowd  of  armed  men,  I  should 
think  there  was  no  room  for  an  orator.  But  the  wisdom  of  Cnaeus 
Pompeius,  a  most  wise  and  just  man,  strengthens  and  encourages 
me;  who  would  certainly  neither  think  it  suitable  to  his  justice 
to  deliver  that  man  up  to  the  weapons  of  the  soldiery  whom  he 
had  given  over  as  an  accused  person  to  the  decision  of  the  judges, 
nor  suitable  to  his  wisdom  to  arm  the  rashness  of  an  excited  multi- 
tude with  public  authority. 

3.  So  that  those  arms,  those  centurions,  those  cohorts,  do  not 
announce  danger  to  us,  but  protection ;  nor  do  they  expect  us 
only  to  be  calm,  but  even  to  be  courageous ;  nor  do  they  promise 
only  assistance  to  my  defence,  but  also  silence.  And  the  rest 
of  the  multitude,  which  consists  of  citizens,  is  wholly  ours ;  nor  is 
there  any  one  individual  among  those  whom  you  see  from  this 
place  gazing  upon  us  from  all  sides  from  which  any  part  of  the 
forum  can  be  seen,  and  watching  the  result  of  this  trial,  who, 
while  he  favors  the  virtue  of  Milo,  does  not  think  that  this  day  in 
reality  his  own  interests,  those  of  his  children,  his  country,  and 
his  fortunes,  are  at  stake. 

4.  There  is  one  class  adverse  and  hostile  to  us,  —  those  whom 
the  madness  of  Publius  Clodius  has  fed  on  rapine,  or  conflagration, 
and  on  every  sort  of  public  disaster ;  and  who  were,  even  in  the 
assembly  held  yesterday,  exhorted  ^  to  teach  you  by  their  clamor, 
what  you  were  to  decide.  But  such  shouts,  if  any  reached  you, 
should  rather  warn  you  to  retain  him  as  a  citizen  who  has  always 
slighted  that  class  of  men,  and  their  greatest  clamor,  in  comparison 
with  your  safety.  Wherefore,  be  of  good  courage,  O  judges,  and 
lay  aside  your  alarm,  if  indeed  you  feel  any;  for  if  ever  you  had 
to  decdde  about  good  and  brave  men,  and  about  citizens  w^ho  had 
deserved  well  of  their  country,  if  ever  an  opportunity  was  given 
to  chosen  men  of  the  most  honorable  ranks  to  show  by  their 
deeds  and  resolutions  that  disposition  towards  brave  and  good 
citizens  which  they  had  often  declared  by  their  looks  and  by 
their  words,  all  that  power  you  now  have,  when  you  are  to  deter- 
mine whether  we  who  have  always  been  wholly  devoted  to  your 
authority  are  to  be  miserable,  and  to  mourn  for  ever,  or  whether, 
having  been  long  harassed  by  the  most  abandoned  citizens,  we 

»  Munatius  Plancus,  the  day  before,  had  exhorted  the  people  not  to 
suffer  Milo  to  escape. 


Chap.  XXIII,  §4,  2.]  ORATION   FOR  MILO  625 

shall  at  length  be  reprieved  and  set  up  again  by  you,  your  loyalty, 
your  virtue,  and  your  wisdom. 

5.  For  what,  O  judges,  is  more  full  of  labor  than  we  both  are, 
what  can  be  either  expressed  or  imagined  more  full  of  anxiety 
and  uneasiness  than  we  are,  who  being  induced  to  devote  ourselves 
to  the  republic  by  the  hope  of  the  most  honorable  rewards,  yet 
cannot  be  free  from  the  fear  of  the  most  cruel  punishments?  I 
have  always  thought  indeed  that  Milo  had  to  encounter  the  other 
storms  and  tempests  in  these  billows  of  the  assemblies  because  he 
always  espoused  the  cause  of  the  good  against  the  bad ;  but  in  a 
court  of  justice,  and  in  that  council  in  which  the  most  honorable 
men  of  all  ranks  are  sitting  as  judges,  I  never  imagined  that  Milo's 
enemies  could  have  any  hope  of  diminishing  his  glory  by  the  aid 
of  such  men,  much  less  of  at  all  injuring  his  safety. 

6.  Although  in  this  cause,  O  judges,  we  shall  not  employ  the 
tribuneship  of  Titus  Annius,  and  all  the  exploits  which  he  has 
performed  for  the  safety  of  the  republic,  as  topics  for  our  defence 
against  this  accusation,  unless  you  see  with  your  own  eyes  that 
a  plot  was  laid  against  Milo  by  Clodius ;  and  we  shall  not  entreat 
you  to  pardon  us  this  one  offence  in  consideration  of  our  many 
eminent  services  to  the  republic,  nor  shall  we  demand,  if  the  death 
of  Publius  Clodius  was  your  safety,  that  on  that  account  you  should 
attribute  it  rather  to  the  virtue  of  Milo,  than  to  the  good  fortune 
of  the  Roman  people ;  but  if  his  plots  are  made  clearer  than  the 
day,  then  indeed  I  shall  entreat,  and  shall  demand  of  you,  O 
judges,  that,  if  we  have  lost  everything  else,  this  at  least  may  be 
left  us,  —  namely,  the  privilege  of  defending  our  lives  from  the 
audacity  and  weapons  of  our  enemies  with  impunity. 

7.  But  before  I  come  to  that  part  of  my  speech  which  especially 
belongs  to  this  trial,  it  seems  necessary  to  refute  those  things  which 
have  been  often  said,  both  in  the  senate  by  our  enemies,  and  in 
the  assembly  of  the  people  by  wicked  men,  and  lately,  too,  by  our 
prosecutors ;  so  that  when  every  cause  of  alarm  is  removed,  you 
may  be  able  distinctly  to  see  the  matter  which  is  the  subject  of 
this  trial.  They  say  that  that  man  ought  no  longer  to  see  the 
light  who  confesses  that  another  man  has  been  slain  by  him.  In 
what  city,  then,  are  these  most  foolish  men  using  this  argument  ? 
In  this  one,  forsooth,  where  the  first  trial  for  a  man's  life  that  took 
place  at  all  was  that  of  Marcus  Horatius,  a  most  brave  man,  who 
even  before  the  city  was  free  was  yet  acquitted  by  the  assembly 
of  the  Roman  people,  though  he  avowed  that  his  sister  had  been 
slain  by  his  hand. 


626  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

8.  Is  there  any  one  who  does  not  know,  that  when  inquiry  is 
made  into  the  slaying  of  a  man,  it  is  usual  either  altogether  to 
deny  that  the  deed  has  been  done,  or  else  to  defend  it  on  the  ground 
that  it  was  rightly  and  lawfully  done?  unless,  indeed,  you  think 
that  Publius  Africanus  was  out  of  his  mind,  who,  when  he  was 
asked  in  a  seditious  spirit  by  Caius  Carbo,  a  tribune  of  the  people, 
what  was  his  opinion  of  the  death  of  Tiberius  Gracchus,  answered 
that  he  seemed  to  have  been  rightly  slain.  For  neither  could 
Servilius  Ahala,  that  eminent  man,  nor  Publius  Nasica,  nor  Lucius 
Opimius,  nor  Caius  Marius,  nor  indeed  the  senate  itself  during 
my  consulship,  have  been  accounted  anything  but  wicked,  if  it 
was  unlawful  for  wicked  citizens  to  be  put  to  death.  And  there- 
fore, O  judges,  it  was  not  without  good  reason,  that  even  in  legen- 
dary fables  learned  men  have  handed  down  the  story,  that  he,  who 
for  the  sake  of  avenging  his  father  had  killed  his  mother,  when  the 
opinions  of  men  varied,  was  acquitted  not  only  by  the  voices  of 
the  gods,  but  even  by  the  very  wisest  goddess.  And  if  the  Twelve 
Tables  have  permitted  that  a  nightly  robber  may  be  slain  anyway, 
but  a  robber  by  day  if  he  defends  himself  with  a  weapon,  who  is 
there  who  can  think  a  man  to  be  punished  for  slaying  another, 
in  whatever  way  he  is  slain,  when  he  sees  that  sometimes  a  sword 
to  kill  a  man  with  is  put  into  our  hands  by  the  very  laws  themselves. 

9.  But  if  there  be  any  occasion  on  which  it  is  proper  to  slay  a 
man,  —  and  there  are  many  such,  —  surely  that  occasion  is  not 
only  a  just  one,  but  even  a  necessary  one,  when  violence  is  offered, 
and  can  only  be  repelled  by  violence.  When  a  military  tribune 
offered  violence  to  a  soldier  in  the  army  of  Caius  Marius,  the  kins- 
man of  that  commander  was  slain  by  the  man  whom  he  was  in- 
sulting ;  for  the  virtuous  youth  chose  to  act,  though  with  danger, 
rather  than  to  suffer  infamously :  and  his  illustrious  commander 
acquitted  him  of  all  guilt,  and  treated  him  well.  But  what  death 
can  be  unjust  when  inflicted  on  a  secret  plotter  and  robber? 

10.  What  is  the  meaning  of  our  retinues,  what  of  our  swords  ? 
Surely  it  would  never  be  permitted  to  us  to  have  them  if  we  might 
never  use  them.  This,  therefore,  is  a  law,  O  judges,  not  written, 
but  born  with  us,  —  which  w^e  have  not  learnt,  or  received  by 
tradition,  or  read,  but  which  we  have  taken  and  sucked  in  and 
imbibed  from  nature  herself;  a  law  which  we  w^ere  not  taught, 
but  to  which  we  were  made,  —  w^hich  we  were  not  trained  in,  but 
which  is  ingrained  in  us,  —  namely,  that  if  our  life  be  in  danger 
from  plots,  or  from  open  violence,  or  from  the  weapons  of  robbers 
or  enemies,  every  means  of  securing  our  safety  is  honorable.     For 


Chap.  XXIII,  §4,  2.1  ORATION   FOR  MILO  627 

laws  are  silent  when  arms  are  raised,  and  do  not  expect  them- 
selves to  be  w^aited  for,  when  he  who  waits  will  have  to  suffer  an 
undeserved  penalty  before  he  can  exact  a  merited  punishment. 

11.  The  law  very  wisely,  and  in  a  manner  silently,  gives  a  man 
a  right  to  defend  himself,  and  does  not  merely  forbid  a  man  to  be 
slain,  but  forbids  any  one  to  have  a  weapon  about  him  with  the 
object  of  slaying  a  man ;  so  that,  as  the  object,  and  not  the  weapon 
itself,  is  made  the  subject  of  the  inquiry,  the  man  who  had  used  a 
weapon  with  the  object  of  defending  himself  would  be  decided 
not  to  have  had  his  weapon  about  him  with  the  object  of  killing 
a  man.  Let,  then,  this  principle  be  remembered  by  you  in  this 
trial,  O  judges;  for  I  do  not  doubt  that  I  shall  make  good  my 
defence  before  you,  if  you  only  remember  —  what  you  cannot 
forget  —  that  a  plotter  against  one  may  be  lawfully  slain. 

12.  The  next  point  is  one  which  is  often  asserted  by  the  enemies 
of  Milo,  who  say  that  the  senate  has  decided  that  the  slaughter 
by  which  Publius  Clodius  fell  was  contrary  to  the  interests  of  the 
republic.  But,  in  fact,  the  senate  has  approved,  not  merely  by 
their  votes,  but  even  zealously.  For  how  often  has  that  cause 
been  pleaded  by  us  in  the  senate  ?  with  what  great  assent  of  the 
whole  body  ?  and  that  no  silent  nor  concealed  assent ;  for  when 
in  a  very  full  senate  were  there  ever  four  or  five  men  found  who 
did  not  espouse  Milo's  cause?  Those  lifeless  assemblies  of  this 
nearly  burnt  ^  tribune  of  the  people  show  the  fact ;  assemblies 
in  which  he  daily  used  to  try  to  bring  my  power  into  unpopular- 
ity, by  saying  that  the  senate  did  not  pass  its  decrees  according 
to  what  it  thought  itself,  but  as  I  chose. 

13.  And  if,  indeed,  that  ought  to  be  called  power,  rather  than 
a  moderate  influence  in  a  righteous  cause  on  account  of  great  ser- 
vices done  to  the  republic,  or  some  popularity  among  the  good  on 
account  of  dutiful  labors  for  its  sake,  let  it  be  called  so,  as  long  as 
we  employ  it  for  the  safety  of  the  good  in  opposition  to  the  mad- 
ness of  the  wicked. 

14.  But  this  investigation,  though  it  is  not  an  unjust  one,  yet 
is  not  one  which  the  senate  thought  ought  to  be  ordered;  for 
there  were  regular  laws  and  forms  of  trial  for  murder,  or  for  as- 
sault ;  nor  did  the  death  of  Publius  Clodius  cause  the  senate  such 
concern  and  sorrow  that  any  new  process  of  investigation  need 

^  After  Clodius's  death,  Munatius  Plancus,  the  tribune,  exposed  his 
body  on  the  rostrum,  and  harangued  the  people  against  Milo ;  the  popu- 
lace carried  the  body  into  the  senate-house,  and  made  a  pile  of  the  seats 
to  burn  it,  in  doing  which  they  burnt  the  senate  house,  and  Plancus  him- 
self with  difficulty  escaped. 


628  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

have  been  appointed,  for  when  the  senate  had  had  the  power  of 
decreeing  a  trial  in  the  matter  of  that  impious  pollution  of  which 
he  was  guilty  taken  from  it,  who  can  believe  it  thought  it  necessary 
to  appoint  a  new  form  of  trial  about  his  death?  Why  then  did 
the  senate  decide  that  this  burning  of  the  senate-house,  this  siege 
laid  to  the  house  of  M.  Lepidus,  and  this  very  homicide,  had 
taken  place  contrary  to  the  interest  of  the  republic?  Why,  be- 
cause no  violence  from  one  citizen  to  another  can  ever  take  place 
in  a  free  state  which  is  not  contrary  to  the  interests  of  the  republic. 
For  the  defending  of  oneself  against  violence  is  never  a  thing  to  be 
wished  for ;  but  it  is  sometimes  necessary,  unless,  indeed,  one  could 
say  that  that  day  on  which  Tiberius  Gracchus  was  slain,  or  that 
day  when  Caius  was,  or  the  day  when  the  arms  of  Saturnius  were 
put  down,  even  if  they  ended  as  the  welfare  of  the  republic  de- 
manded, were  yet  no  wound  and  injury  to  the  republic. 

15.  Therefore  I  myself  voted,  when  it  was  notorious  that  a 
homicide  had  taken  place  on  the  Appian  road,  not  that  he  who  had 
defended  himself  had  acted  in  a  manner  contrary  to  the  interests 
of  the  republic;  but  as  there  was  violence  and  treachery  in  the 
business,  I  reserved  the  charge  for  trial,  I  expressed  my  disappro- 
bation of  the  business.  And  if  the  senate  had  not  been  hindered 
by  that  frantic  tribune  from  executing  its  wishes,  we  should  not 
now  have  this  novel  trial.  For  the  senate  voted  that  an  extraor- 
dinary investigation  should  take  place  according  to  the  ancient 
laws.  A  division  took  place,  it  does  not  signify  on  whose  motion, 
for  it  is  not  necessary  to  mention  the  worthlessness  of  every  one, 
and  so  the  rest  of  the  authority  of  the  senate  was  destroyed  by 
this  corrupt  intercession. 

16.  "  Oh,  but  Cnseus  Pompeius,  by  his  bill,  gave  his  decision 
both  about  the  fact  and  about  the  cause.  For  he  brought  in  a  bill 
about  the  homicide  which  had  taken  place  on  the  Appian  road, 
in  which  Publius  Clodius  was  slain."  What  then  did  he  propose? 
That  an  inquiry  should  be  made.  What  is  to  be  inquired  about  ? 
Whether  it  was  committed  ?  That  is  clear.  By  whom  ?  That  is 
notorious.  He  saw  that  a  defence  as  to  the  law  and  right  could 
be  undertaken,  even  at  the  very  moment  of  the  confession  of  the 
act.  But  if  he  had  not  seen  that  he  who  confessed  might  yet  be 
acquitted,  when  he  saw  that  we  did  not  confess  the  fact,  he  would 
never  have  ordered  an  investigation  to  take  place,  nor  would  he 
have  given  you  at  this  trial  the  power  ^  of  acquitting  as  well  as 

^Literally,  "this  wholesome  letter,  as  well  as  that  melancholy  one." 
The  letter  A  was  the  "wholesome"  letter,  being  the  initial  of  absolvo,  I 


Chap.  XXIII,  §4,  2.]  ORATION   FOR  MILO  629 

that  of  condemning.  But  it  seems  to  me  that  Cnseus  Pompeius 
not  only  delivered  no  decision  at  all  unfavorable  to  Milo,  but  that 
he  also  pointed  out  what  you  ought  to  turn  your  attention  to  in 
deciding.  For  he  who  did  not  assign  a  punishment  to  the  confes- 
sion, but  required  a  defence  of  it,  he  clearly  thought  that  what 
was  inquired  into  was  the  cause  of  the  death,  and  not  the  mere 
fact  of  the  death.  Now  he  himself  shall  tell  us  whether  what  he 
did  of  his  own  accord  was  done  out  of  regard  for  Publius  Clodius, 
or  from  a  compliance  with  the  times. 

17.  A  most  noble  man,  a  bulwark,  and  in  those  times,  indeed, 
almost  a  protector  of  the  senate,  the  uncle  of  this  our  judge,  of 
that  most  fearless  man  Marcus  Cato,  Marcus  Drusus,  a  tribune 
of  the  people,  was  slain  in  his  own  house.  The  people  had  never 
any  reference  made  to  them  in  the  matter  of  his  death,  no  investi- 
gation was  voted  by  the  senate.  What  great  grief  was  there,  as  we 
have  heard  from  our  forefathers  in  this  city,  when  that  attack 
was  made  by  night  on  Publius  Africanus,  while  sleeping  in  his  own 
house  !  Who  was  there  then  who  did  not  groan,  who  did  not  burn 
with  indignation,  that  men  should  not  have  waited  even  for  the 
natural  and  inevitable  death  of  that  man  whom,  if  possible,  all 
would  have  wished  to  be  immortal  ? 

18.  Was  there  then  any  extraordinary  investigation  into  the 
death  of  Africanus  ^  voted  ?  Certainly  none.  Why  so  ?  Be- 
cause the  crime  of  murder  is  not  different  when  eminent  men,  or 
when  obscure  ones  are  slain.  Let  there  be  a  difference  between  the 
dignity  of  the  lives  of  the  highest  and  lowest  citizens.  If  their 
death  be  wrought  by  wickedness,  that  must  be  avenged  by  the 
same  laws  and  punishments  in  either  case;  unless,  indeed  he  be 
more  a  parricide  who  murders  a  father  of  consular  rank  than  he 
who  murders  one  of  low  degree;  or  as  if  the  death  of  Publius 
Clodius  is  to  be  more  criminal  because  he  was  slain  among  the 
monuments  of  his  ancestors,  —  for  this  is  constantly  said  by  that 

acquit ;  the  letter  C  the  melancholy  one,  being  the  initial  of  condemno, 
I  condemn. 

^  After  the  death  of  Tiberius  Gracchus,  Publius  ^Emilianus  Africanus 
Scipio,  the  conqueror  of  Carthage  and  Numantia,  was  known  to  be 
hostile  to  the  agrarian  law,  and  threw  every  obstacle  in  the  way  of  it ; 
his  enemies  gave  out  that  he  intended  to  abrogate  it  by  force.  One  morn- 
ing he  was  found  dead  in  his  bed  without  a  wound.  The  cause  and 
manner  of  his  death  were  unknown  ;  some  said  it  was  natural ;  some,  that 
he  had  slain  himself ;  some,  that  his  wife  Sempronia,  the  sister  of  Gracchus, 
had  strangled  him.  His  slaves,  it  was  said,  declared  that  some  strangers 
had  been  introduced  into  the  house  at  the  back,  who  had  strangled  him, 
and  the  triumvir  Carbo  is  generally  believed  to  have  been  the  chief  agent 
in  his  murder,  and  is  expressly  mentioned  as  the  murderer  by  Cicero, 
Ep.  ad  Q.  Fr.  ii.  3. 


630  ANCIENT  AND   PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

party ;  as  if,  I  suppose,  that  illustrious  Appius  Csecus  made  that 
road,  not  that  the  nation  might  have  a  road  to  use,  but  that  his 
own  posterity  might  have  a  place  in  which  to  rob  with  impunity. 

19.  Therefore  in  that  same  Appian  road,  when  Publius  Clodius 
had  slain  a  most  accomplished  Roman  knight,  Marcus  Papirius, 
that  crime  was  not  to  be  punished ;  for  a  nobleman  among  his  own 
family  monuments  had  slain  a  Roman  knight.  Now  what  trage^ 
dies  does  the  name  of  that  same  Appian  road  awaken?  which, 
though  nothing  was  said  about  it  formerly,  when  stained  with  the 
murder  of  an  honorable  and  innocent  man,  is  now  incessantly  men- 
tioned ever  since  it  has  been  dyed  with  the  blood  of  a  robber  and 
a  parricide.  But  why  do  I  speak  of  these  things  !  A  slave  of  Pub- 
lius Clodius  was  arrested  in  the  temple  of  Castor,  whom  he  had 
placed  there  to  murder  Cnseus  Pompeius ;  the  dagger  was  wrested 
from  his  hands  and  he  confessed  his  design ;  after  that  Pompeius 
absented  himself  from  the  forum,  absented  himself  from  the  senate, 
and  from  all  public  places;  he  defended  himself  within  his  own 
doors  and  walls,  not  by  the  power  of  the  laws  and  tribunals. 

20.  Was  any  motion  made?  was  any  extraordinary  investiga- 
tion voted  ?  But  if  any  circumstance,  if  any  man,  if  any  occasion 
was  ever  important  enough  for  such  a  step,  certainly  all  these  things 
were  so  in  the  greatest  degree  in  that  cause.  The  assassin  had  been 
stationed  in  the  forum,  and  in  the  very  vestibule  of  the  senate. 
Death  was  being  prepared  for  that  man  on  whose  life  the  safety 
of  the  senate  depended.  Moreover,  at  that  crisis  of  the  republic, 
when,  if  he  alone  had  died,  not  only  this  state,  but  all  the  nations 
in  the  world  would  have  been  ruined,  —  unless,  indeed,  the  crime 
was  not  to  be  punished  because  it  was  not  accomplished,  just  as  if 
the  execution  of  crimes  was  chastised  by  the  laws,  and  not  the  in- 
tentions of  men,  —  certainly  there  was  less  cause  to  grieve,  as  the 
deed  was  not  accomplished,  but  certainly  not  a  whit  the  less  cause 
to  punish.  How  often,  O  judges,  have  I  myself  escaped  from  the 
weapons  and  from  the  bloody  hands  of  Publius  Clodius !  But  if 
my  good  fortune,  or  that  of  the  republic,  had  not  preserved  me 
from  them,  who  would  have  proposed  any  investigation  into  my 
death. 

21.  But  it  is  foolish  of  us  to  dare  to  compare  Drusus,  Africanus, 
Pompeius,  or  ourselves,  with  Publius  Clodius.  All  these  things 
were  endurable.  The  death  of  Publius  Clodius  no  one  can  bear 
with  equanimity.  The  senate  is  in  mourning ;  the  knights  grieve ; 
the  whole  state  is  broken  down  as  if  with  age ;  the  municipalities 
are  in  mourning ;    the  colonies  are  bowed  down ;    the  very  fields 


Chap,  XXIII,  §4,  2.]  ORATION   FOR  MILO  631 

even  regret  so  beneficent,  so  useful,  so  kind-hearted  a  citizen  I 
That  was  not  the  cause,  O  judges,  it  was  not  indeed,  why  Pom- 
peius  thought  an  investigation  ought  to  be  proposed  by  him ;  but 
being  a  man  wise  and  endowed  with  lofty  and  almost  divine  intel- 
lect, he  saw  many  things,  —  that  Clodius  was  his  personal  enemy, 
Milo  his  intimate  friend ;  he  feared  that,  if  he  were  to  rejoice  in 
the  common  joy  of  all  men,  the  belief  in  his  reconciliation  with 
Clodius  would  be  weakened.  He  saw  many  other  things,  too, 
but  this  most  especially,  —  that  in  whatever  terms  of  severity  he 
proposed  the  motion,  still  you  would  decide  fearlessly.  Therefore, 
he  selected  the  very  lights  of  the  most  eminent  ranks  of  the  state. 
He  did  not,  indeed,  as  some  are  constantly  saying,  exclude  my 
friends  in  selecting  the  tribunal ;  for  neither  did  that  most  just 
man  think  of  this,  nor,  wherl  he  was  selecting  good  men,  could  he 
have  managed  to  do  so,  even  had  he  wished ;  for  my  influence 
would  not  be  limited  by  my  intimacies,  which  can  never  be  very 
extensive,  because  one  cannot  associate  habitually  with  many 
people ;  but,  if  we  have  any  influence,  we  have  it  on  this  account, 
because  the  republic  has  associated  us  with  the  virtuous;  and, 
when  he  was  selecting  the  most  excellent  of  them,  and  as  he 
thought  that  it  especially  concerned  his  credit  to  do  so,  he  was 
unable  to  avoid  selecting  men  who  were  well-disposed  towards  me. 

22.  But  as  for  his  especially  appointing  you,  O  Lucius  Domitius, 
to  preside  over  this  investigation,  in  that  he  was  seeking  nothing 
except  justice,  dignity,  humanity  and  good  faith.  He  passed  a 
law  that  it  must  be  a  man  of  consular  dignity,  because,  I  suppose, 
he  considered  the  duty  of  the  men  of  the  highest  rank  to  resist 
both  the  fickleness  of  the  multitude  and  the  rashness  of  the  profli- 
gate ;  and  of  the  men  of  consular  rank  he  selected  you  above  all ; 
for  from  your  earliest  youth  you  had  given  the  most  striking  proofs 
how  you  despised  the  madness  of  the  people. 

23.  Wherefore,  O  judges,  that  we  may  at  last  come  to  the  sub- 
ject of  action  and  the  accusation,  if  it  is  neither  the  case  that  all 
avowal  of  the  deed  is  unprecedented,  nor  that  anything  has  been 
determined  about  our  cause  by  the  senate  differently  to  what  we 
could  wish;  and  if  the  proposer  of  the  law  himself,  when  there 
was  no  dispute  as  to  the  deed  yet  thought  that  there  should  be  a 
discussion  as  to  the  law ;  and  if  the  judges  had  been  chosen,  and  a 
man  appointed  to  preside  over  the  investigation,  to  decide  these 
matters  justly  and  wisely ;  it  follows,  O  judges,  that  you  have  now 
nothing  else  to  inquire  into  but  which  plotted  against  the  other ; 
and  that  you  may  the  more  easily  discern  this,  attend  carefully,  I 


632  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

entreat  you,   while  I   briefly  explain  to  you  the  matter  as   it 
occurred. 

24.  When  Publius  Clodius  had  determined  to  distress  the  re- 
public by  all  sorts  of  wickedness  during  his  prsetorship,  and  saw 
that  the  comitia  were  so  delayed  the  year  before,  that  he  w^ould 
not  be  able  to  continue  his  prsetorship  many  months,  as  he  had 
no  regard  to  the  degree  of  honor,  as  others  have,  but  both  wished 
to  avoid  having  Lucius  Paullus,  a  citizen  of  singular  virtue,  for 
his  colleague,  and  also  to  have  an  entire  year  to  mangle  the  repub- 
lic ;  on  a  sudden  he  abandoned  his  own  year,  and  transferred 
himself  to  the  next  year,  not  from  any  religious  scruple,  but  that 
he  might  have,  as  he  said  himself,  a  full  and  entire  year  to  act  as 
praetor,  that  is,  to  overthrow^  the  republic. 

25.  It  occurred  to  him  that  his  prsetorship  would  be  crippled 
and  powerless,  if  Milo  was  consul ;  and,  moreover,  he  saw  that  he 
w^as  being  made  consul  with  the  greatest  unanimity  of  the  Roman 
people.  He  betook  himself  to  his  competitors,  but  in  such  a 
manner  that  he  alone  managed  the  whole  election,  even  against 
their  will,  —  that  he  supported  on  his  own  shoulders,  as  he  used 
to  say,  the  whole  comitia,  —  he  convoked  the  tribes,  —  he  inter- 
posed, —  he  erected  a  new  Colline  tribe  by  the  enrolment  of  the 
most  worthless  of  the  citizens.  In  proportion  as  the  one  caused 
greater  confusion,  so  did  the  other  acquire  additional  power  every 
day.  When  the  fellow^  prepared  for  every  atrocity,  saw  that  a 
most  brave  man,  his  greatest  enemy,  was  a  most  certain  consul, 
and  that  that  was  declared,  not  only  by  the  conversation  of  the 
Roman  people,  but  also  by  their  votes,  he  began  to  act  openly, 
and  to  say  without  disguise  that  Milo  must  be  slain. 

26.  He  had  brought  down  from  the  Apennines  rustic  and 
barbarian  slaves,  whom  you  saw,  with  whom  he  had  ravaged  the 
public  woods  and  Etruria.  The  matter  was  not  concealed  at  all. 
In  truth,  he  used  to  say  undisguisedly  that  the  consulship  could 
not  be  taken  from  Milo,  but  that  life  could.  He  often  hinted  as 
much  in  the  senate;  he  said  it  plainly  in  the  public  assembly. 
Besides,  when  Favonius,  a  brave  man,  asked  him  what  he  hoped 
for  by  giving  way  to  such  madness  while  Milo  was  alive?  he 
answered  him,  that  in  three,  or  at  most  in  four  days,  he  would  be 
dead.  And  this  saying  of  his  Favonius  immediately  reported  to 
Marcus  Cato,  who  is  here  present. 

27.  In  the  meantime,  as  Clodius  knew  —  and  it  was  not  hard  to 
know  it  —  that  Milo  was  forced  to  take  a  yearly,  legitimate, 
necessary  journey  on  the  twentieth  of  January  to  Lanuvium  to 


Chap.  XXIII,  §4,  2.]  ORATION   FOR  MILO  633 

appoint  a  priest/  because  Milo  was  dictator  of  Lanuvium,  on  a 
sudden  he  himself  left  Rome  the  day  before,  in  order  (as  was  seen 
by  the  event)  to  lay  an  ambush  for  Milo  in  front  of  his  farm ;  and 
he  departed,  so  that  he  was  not  present  at  a  turbulent  assembly  in 
which  his  madness  was  greatly  missed,  and  which  was  held  that 
very  day,  and  from  which  he  never  would  have  been  absent,  if 
he  had  not  desired  to  avail  himself  of  the  place  and  opportunity 
for  a  crime. 

28.  But  Milo,  as  he  had  been  that  day  in  the  senate  till  it  was 
dismissed,  came  home,  changed  his  shoes  and  his  garments,  waited 
a  little,  as  men  do,  while  his  wife  was  getting  ready,  and  then 
started  at  the  time  when  Clodius  might  have  returned,  if,  indeed, 
he  had  been  coming  to  Rome  that  day.  Clodius  meets  him  unen- 
cumbered on  horseback,  with  no  carriage,  with  no  baggage,  with 
no  Greek  companions,  as  he  was  used  to,  without  his  wife,  which 
was  scarcely  ever  the  case;  while  this  plotter,  who  had  taken, 
forsooth,  that  journey  for  the  express  purpose  of  murder,  was 
driving  with  his  w^ife  in  a  carriage,  in  a  heavy  travelling  cloak, 
with  abundant  baggage,  and  a  delicate  company  of  women,  and 
maid-servants,  and  boys.  He  meets  Clodius  in  front  of  his  farm, 
about  the  eleventh  hour,  or  not  far  from  it.  Immediately  a 
number  of  men  attack  him  from  the  higher  ground  with  missile 
weapons.  The  men  who  are  in  front  kill  his  driver,  and  when 
he  had  jumped  down  from  his  chariot  and  flung  aside  his  cloak 
and  w^hile  he  was  defending  himself  with  vigorous  courage,  the 
men  who  were  with  Clodius  drew  their  swords,  and  some  of  them 
ran  back  towards  his  chariot  in  order  to  attack  Milo  from  behind, 
and  some,  because  they  thought  that  he  was  already  slain,  began 
to  attack  his  servants  who  were  behind  him;  and  those  of  the 
servants  who  had  presence  of  mind  to  defend  themselves,  and  were 
faithful  to  their  master,  were  some  of  them  slain,  and  the  others, 
when  they  saw  a  fierce  battle  taking  place  around  the  chariot, 
and  as  they  were  prevented  from  getting  near  their  master  so  as 
to  succor  him,  when  they  heard  Clodius  himself  proclaim  that 
Milo  was  slain,  and  they  thought  that  it  was  really  true,  they, 
the  servants  of  Milo,  (I  am  not  speaking  for  the  purpose  of  shift- 
ing the  guilt  on  to  the  shoulders  of  others,  but  I  am  saying  what 
really  occurred,)  did,  without  their  master  either  commanding  it, 
or  knowing  it,  or  even  being  present  to  see  it,  what  every  one  would 
have  wished  his  servants  to  do  in  a  similar  case. 

29.  These  things  were  all  done,  O  judges,  just  as  I  have  related 
1  It  was  the  priest  of  Juno  Sospita,  who  was  the  patroness  of  Lanuvium. 


634  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

them.  The  man  who  laid  the  plot  was  defeated;  violence  was 
defeated  by  violence ;  or,  I  should  rather  say,  audacity  was  crushed 
by  valor.  I  say  nothing  about  what  the  republic,  nothing  about 
what  you,  nothing  about  what  all  good  men  gained  by  the  result. 
I  do  not  desire  it  to  be  any  advantage  to  me  to  hear  that  he  was 
born  with  such  a  destiny  that  he  was  unable  even  to  save  himself, 
without  at  the  same  time  saving  the  republic  and  all  of  you.  If  he 
had  not  a  right  to  do  so,  then  I  have  nothing  which  I  can  urge 
in  his  defence.  But  if  both  reason  has  taught  this  lesson  to 
learned  men,  and  necessity  to  barbarians,  and  custom  to  all 
nations,  and  nature  itself  to  the  beasts,  that  they  are  at  all  times 
to  repel  all  violence  by  whatever  means  they  can  from  their  per- 
sons, from  their  liberties,  and  from  their  lives,  then  you  cannot 
decide  this  action  to  have  been  wrong,  without  deciding  at  the 
same  time  that  all  men  who  fall  among  thieves  must  perish,  either 
by  their  weapons,  or  by  your  sentence. 

30.  And  if  he  had  thought  that  this  was  the  law,  it  would  have 
been  preferable  for  Milo  to  offer  his  throat  to  Publius  Clodius, 
—  which  w^as  not  attacked  by  him  once  only,  nor  for  the  first 
time  on  that  day,  —  rather  than  now  to  be  destroyed  by  you 
because  he  did  not  surrender  himself  then  to  be  destroyed  by  him. 
But  if  there  is  no  one  of  you  who  entertains  such  an  opinion  as 
that,  then  the  question  which  arises  for  the  consideration  of  the 
court  is,  not  whether  he  was  slain  or  not,  which  we  admit,  but 
whether  he  was  slain  legally  or  illegally,  which  is  an  inquiry  which 
has  often  been  instituted  in  many  causes.  It  is  quite  plain  that 
a  plot  was  laid ;  and  that  is  a  thing  which  the  senate  has  decided 
to  be  contrary  to  the  laws  of  the  republic.  By  whom  it  was  laid 
is  a  question.  And  on  this  point  an  inquiry  has  been  ordered  to 
be  instituted.  So  the  senate  has  marked  its  disapproval  of  the 
fact,  not  of  the  man;  and  Pompeius  has  appointed  this  inquiry 
into  the  merits  of  the  case,  and  not  into  the  fact  of  its  existence. 

31.  Does  then  any  other  point  arise  for  the  decision  of  the  court, 
except  this  one,  —  which  laid  a  plot  against  the  other  ?  None 
whatever.  The  case  comes  before  you  in  this  way,  that  if  Milo 
laid  a  plot  against  Clodius,  then  he  is  not  to  be  let  off  with  im- 
punity. If  Clodius  laid  it  against  Milo,  then  we  are  acquitted 
from  all  guilt. 

32.  How  then  are  we  to  prove  that  Clodius  laid  a  plot  against 
Milo  ?  It  is  quite  sufficient  in  the  case  of  such  a  wicked,  of  such 
an  audacious  monster  as  that,  to  prove  that  he  had  great  reason 
to  do  so ;  that  he  had  great  hopes  founded  on  Milo's  death ;  that 


Chap.  XXIII,  §  4,  2.]  ORATION  FOR  MILO  635 

it  would  have  been  of  the  greatest  service  to  him.  Therefore,  that 
maxim  of  Cassius,  to  see  to  whose  advantage  it  was,  may  well  have 
influence  in  respect  of  these  persons.  For  although  good  nlen 
cannot  be  induced  to  commit  crimes  by  any  advantage  whatever, 
wicked  men  often  can  by  a  very  trifling  one.  And.  if  Milo  were 
slain,  Clodius  gained  this,  not  only  that  he  should  be  praetor 
without  having  him  for  a  consul,  under  whom  he  would  not  be 
able  to  commit  any  wickedness,  but  also  that  he  should  have  those 
men  for  consuls  while  he  was  prsetor,  who,  if  they  did  not  aid  him, 
would  at  all  events  connive  at  all  his  proceedings  to  such  an  extent 
that  he  hoped  he  should  be  able  to  escape  detection  in  all  the  fran- 
tic actions  which  he  was  contemplating;  as  they  (so  he  argued 
to  himself)  would  not,  even  if  they  were  able  to  do  so,  be  anxious 
to  check  his  attempts  when  they  considered  that  they  were  under 
such  obligations  to  him ;  and  on  the  other  hand,  if  they  did  wish 
to  do  so,  perhaps  they  would  hardly  be  able  to  crush  the  audacity 
of  that  most  wicked  man  when  it  got  strength  by  its  long  contin- 
uance. Are  you,  O  judges,  the  only  persons  ignorant  of  all  this  ? 
Are  you  living  in  this  city  as  ignorant  of  what  passes  as  if  you 
were  visitors  ?  Are  your  ears  all  abroad,  do  they  keep  aloof  from 
all  the  ordinary  topics  of  conversation  of  the  city,  as  to  what  laws 
(if,  indeed  they  are  to  be  called  laws,  and  not  rather  firebrands 
to  destroy  the  city,  pestilences  to  annihilate  the  republic)  that 
man  was  intending  to  impose  upon  all  of  us,  to  brand  on  our  fore- 
heads ?  Exhibit,  I  beg  you,  Sextus  Clodius,  produce,  I  beg,  that 
copy  of  your  laws  which  they  say  that  you  saved  from  your  house, 
and  from  the  middle  of  the  armed  band  which  threatened  you  by 
night,  and  bore  aloft,  like  another  palladium,  in  order,  forsooth, 
to  be  able  to  carry  that  splendid  present,  that  instrument  for  dis- 
charging the  duties  of  the  tribuneship,  to  some  one,  if  you  could 
obtain  his  election,  who  would  discharge  those  duties  according 
to  your  directions.  And  ...  [he  was  going  to  divide  the  free- 
dom among  all  the  tribes,  and  by  his  new  law  to  add  all  the  slaves 
w^ho  were  going  to  be  emancipated,  but  who  had  not  yet  received 
their  freedom,  so  that  they  might  vote  equally  with  the  free 
citizens.]  ^ 

33.  Would  he  have  dared  to  make  mention  of  this  law  which 
Sextus  Clodius  boasts  was  devised  by  him,  while  Milo  was  alive, 

not  to  say  while  he  was  consul  ?     For  of  all  of  us 1  cannot 

venture  to  say  all  that  I  was  going  to  say.     But  do  you  consider 

1  The  passage  in  brackets  is  a  very  doubtful  supplement  of  Beier : 
which,  however,  Orellius  prefers  to  any  other. 


636  ANCIENT  AND   PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

what  enormous  faults  the'  law  itself  must  have  had,  when  the 
mere  mention  of  it,  for  the  purpose  of  finding  fault  with  it,  is  so 
offensive  ?  And  he  looked  at  me  with  the  expression  of  countenance 
which  he  was  in  the  habit  of  putting  on  when  he  was  threatening 
everybody  with  every  sort  of  calamity.  That  light  of  the  senate- 
house  moves  me.^ 

34.  What?  do  you  suppose,  O  Sextus,  that  I  am  angry  with 
you ;  I,  whose  greatest  enemy  you  have  punished  with  even  much 
greater  severity  than  my  humanity  could  resolve  to  demand? 
You  cast  the  bloody  carcass  of  Publius  Clodius  out  of  the  house, 
you  threw  it  out  into  the  public  street,  you  left  it  destitute  of  all 
images,  of  all  funeral  rites,  of  all  funeral  pomp,  of  all  funeral 
panegyric,  half  consumed  by  a  lot  of  miserable  logs,  to  be  torn  to 
pieces  by  the  dogs  who  nightly  prowl  about  the  streets.  Where- 
fore, although  in  so  doing  you  acted  most  impiously,  still  you  were 
wreaking  all  your  cruelty  on  my  enemy ;  though  I  cannot  praise 
you,  I  certainly  ought  not  to  be  angry  with  you.  .  .  . 

35.  [I  have  demonstrated  now,  O  judges,  of  what  great  conse- 
quence it  was  to  Clodius]  that  Milo  should  be  slain.  Now  turn 
your  attention  to  Milo.  What  advantage  could  it  be  to  Milo 
that  Clodius  should  be  slain  ?  What  reason  was  there  why  Milo, 
I  will  not  say  should  do  such  an  action,  but  should  even  wish  for 
his  death  ?  Oh,  Clodius  was  an  obstacle  to  Milo's  hope  of  obtain- 
ing the  consulship.  But  he  was  obtaining  it  in  spite  of  him.  Ay, 
I  might  rather  say  he  was  obtaining  it  all  the  more  because  Clodius 
was  opposing  him ;  nor  in  fact  was  I  a  more  efficient  support  to 
him  than  Clodius  was.  The  recollection,  O  judges,  of  the  services 
which  Milo  had  done  to  me  and  to  the  republic  had  weight  with 
you.  My  entreaties  and  my  tears,  with  which  I  perceived  at 
that  time  that  you  were  greatly  moved,  had  weight  with  you; 
but  still  more  weight  had  your  own  fear  of  the  dangers  which 
were  impending.  For  who  of  the  citizens  was  there  who  could 
turn  his  eyes  to  the  unrestrained  prsetorship  of  Publius  Clodius, 
without  feeling  the  greatest  dread  of  a  revolution  ?  and  unrestrained 
you  saw  that  it  would  be  unless  you  had  a  consul  who  had  both 
courage  and  power  to  restrain  him;  and  as  the  whole  Roman 
people  saw  that  Milo  alone  was  that  man,  who  could  hesitate  by 
his  vote  to  release  himself  from  fear,  and  the  republic  from  danger  ? 

36.  But  now,  now  that  Clodius  is  removed,  Milo  has  got  to  labor 
by  more  ordinary  practices  to   preserve  his   dignity.  ...     So 

1  Cicero  here  supposes  Sextus  Clodius  to  look  menacingly  at  him  in 
order  to  check  him  in  his  attack  on  this  intended  law. 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  637 

that  the  death  of  Clodius  is  not  only  no  advantage,  but  is  even 
a  positive  injury  to  Milo. 

37.  ''  Oh,  but  his  hatred  prevailed  with  him ;  he  slew  him  in 
a  passion;  he  slew  him  because  he  was  his  enemy;  he  acted  as 
the  avenger  of  his  own  injury ;  he  was  exacting  atonement  to  ap- 
pease his  private  indignation."  But  what  will  you  say  if  these 
feelings,  I  do  not  say  existed  in  a  greater  degree  in  Clodius  than 
in  Milo,  but  if  they  existed  in  the  greatest  possible  degree  in  the 
former,  and  not  at  all  in  the  latter  ?  .  .  .  For  Clodius  was  liable 
to  the  prosecution  of  Milo,  according  to  the  provisions  of  the 
Plotian  law,  as  long  as  he  lived.  ... 

38.  It  remains  for  me  now  to  urge  his  natural  disposition  and 
his  habits  of  life  in  the  defence  of  the  one,  and  the  very  same  things 
as  an  accusation  against  the  other.  Clodius,  I  suppose,  had 
never  done  anything  by  violence;  Milo  had  done  everything  by 
violence.  What  then  shall  I  say,  O  judges?  When,  amid  the 
grief  of  all  of  you,  I  departed  from  the  city,  was  I  afraid  of  the 
result  of  a  trial  ?  was  I  not  afraid  of  slaves,  and  arms  and  violence  ? 
What,  I  pray  you,  was  the  first  ground  of  my  restoration,  except 
that  I  had  been  unjustly  driven  out?  Clodius,  I  suppose,  had 
commenced  a  formal  prosecution  against  me :  he  had  named  a 
sum  as  damages ;  he  had  commenced  an  action  for  high  treason ; 
and  I  suppose  too,  I  had  cause  to  fear  your  decision  in  a  cause 
which  was  an  unjust  one,  which  was  my  own  private  cause,  not 
one  which  was  a  most  righteous  one,  and  which  was,  in  reality, 
your  cause,  and  not  mine  ?  No  —  I  was  unwilling  that  my 
fellow-citizens,  who  had  been  saved  by  my  prudence  and  by  my 
own  personal  danger,  should  be  exposed  to  the  arms  of  slaves  and 
needy  citizens  and  convicted  malefactors.  For  I  saw  —  I  saw, 
I  say,  this  very  Quintus  Hortensius,  the  light  and  ornament  of 
the  republic,  almost  slain  by  the  hand  of  slaves,  while  he  was 
standing  by  me.  In  which  crowd  Caius  Vibienus,  a  senator,  a 
most  excellent  man,  who  was  with  Hortensius,  was  so  maltreated 
that  he  lost  his  life. 

39.  When,  then,  was  it  that  that  assassin's  dagger  of  his,  which 
he  had  received  from  Catiline,  rested?  It  was  aimed  at  us;  I 
would  not  allow  you  all  to  be  exposed  to  it  for  my  sake.  It  was 
prepared  in  treachery  for  Pompeius.  It  stained  with  blood 
through  the  murder  of  Papirius,  the  very  Appian  road,  the  monu- 
ment of  his  name;  this,  this  same  dagger,  after  a  long  interval 
was  again  turned  against  me;  lately,  as  you  know,  it  nearly 
murdered  me  close  to  the  palace  of  Ancus. 


638  ANCIENT  AND   PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

40.  What  is  there  of  Milo's  conduct  like  all  this?  when  all 
the  violence  that  he  has  ever  displayed  has  amounted  to  this, 
that  he  wished  to  prevent  Publius  Clodius  (as  he  could  not  be 
brought  to  trial)  from  oppressing  the  city  by  violence.  And  if 
he  wished  to  put  him  to  death,  what  great,  what  repeated,  and 
what  splendid  opportunities  he  had  of  doing  so !  Might  he  not 
have  avenged  himself  without  violating  the  law  when  he  was 
defending  his  own  house  and  his  household  gods  from  his  attacks  ? 
might  he  not  have  done  so  when  that  illustrious  citizen  and  most 
gallant  man,  Publius  Sextius,  his  own  colleague,  was  wounded? 
might  he  not  have  done  so  when  that  most  excellent  man,  Quintus 
Fabricius,  while  carrying  a  bill  for  my  restoration,  was  driven 
away,  and  when  a  most  cruel  slaughter  was  taking  place  in  the 
forum?  might  he  not  have  done  so  when  the  house  of  Lucius 
Csecilius,  that  most  upright  and  fearless  praetor,  was  attacked? 
might  he  not  have  done  so  on  the  day  on  which  the  law  concern- 
ing me  was  passed,  and  when  that  vast  concourse  of  people  from 
all  parts  of  Italy,  whom  a  regard  for  my  safety  had  roused  up, 
would  have  gladly  recognized  and  adopted  as  its  own  the  glory  of 
that  action  ?  so  that,  even  if  Milo  had  performed  it,  the  whole  state 
would  claim  the  praise  of  it  as  belonging  to  itself  ? 

41.  And  what  a  time  was  it?  A  most  illustrious  and  fearless 
consul,  Publius  Lentulus,  an  enemy  to  Clodius,  the  avenger  of 
his  wickedness,  the  bulwark  of  the  senate,  the  defender  of  your 
inclinations,  the  patron  of  that  general  unanimity,  the  restorer 
of  my  safety ;  seven  praetors,  eight  tribunes  of  the  people,  adver- 
saries of  him,  defenders  of  me;  Cnseus  Pompeius,  the  prime 
mover  of  and  chief  agent  in  my  return,  his  open  enemy :  whose 
opinion  respecting  my  return,  delivered  in  the  most  dignified  and 
most  complimentary  language,  the  whole  senate  adopted;  he 
who  exhorted  the  whole  Roman  people,  and,  when  he  passed  a 
decree  concerning  me  at  Capua,  gave  himself  the  signal  to  all 
Italy,  which  was  eager  for  it,  and  which  was  imploring  his  good 
faith,  to  join  together  for  the  purpose  of  restoring  me  to  Rome ; 
in  short,  universal  hatred  on  the  part  of  all  the  citizens,  was  ex- 
cited against  him,  while  their  minds  were  inflamed  with  as  earnest 
a  regret  for  me ;  so  that  if  any  one  had  slain  him  at  that  time, 
people's  thoughts  would  have  been,  not  how  to  procure  impunity 
for  such  a  man,  but  how  to  reward  him  sufficiently. 

42.  Nevertheless,  Milo  restrained  himself,  and  twice  sum- 
moned Publius  Clodius  before  the  court,  but  never  once  invited 
him  to  a  trial  of  strength  in  scenes  of  violence.     What  do  I  say  ? 


Chap.  XXIII,  §4,  2.]  ORATION  FOR   MILO  639 

while  Milo  was  a  private  individual,  and  on  his  trial  before  the 
people,  on  the  accusation  of  Publius  Clodius,  when  an  attack  was 
made  on  Cnseus  Pompeius,  while  speaking  in  defence  of  Milo, 
was  there  not  then  not  only  an  admirable  opportunity  of,  but 
even  a  reasonable  pretext  for  slaying  him?  And  lately,  when 
Marcus  Anton ius  had  inspired  all  virtuous  men  with  the  very 
greatest  hope  of  safety,  and  when  he,  being  a  most  noble  young 
man,  had  with  the  greatest  gallantry  espoused  the  cause  of  the 
republic,  and  had  that  beast  almost  in  his  toils  in  spite  of  his  avoid- 
ing the  snares  of  the  law ;  what  an  opportunity,  what  a  time  and 
place  was  there,  O  ye  immortal  gods !  And  when  Clodius  had 
fled  and  hidden  himself  in  the  darkness  of  the  stairs,  there  was 
a  fine  opportunity  for  Milo  to  slay  him  without  incurring  the 
slightest  odium  himself,  and  to  load  Antonius  at  the  same  time 
with  the  greatest  glory  !  What  ?  How  repeatedly  had  he  a  sim- 
ilar chance  in  the  comitia !  when  he  had  broken  into  the  voting 
booth,  and  contrived  to  have  swords  drawn  and  stones  thrown, 
and  then  on  a  sudden,  terrified  at  the  look  of  Milo,  fled  towards 
the  Tiber,  and  you  and  all  virtuous  men  prayed  to  heaven 
that  Milo  might  take  it  into  his  head  to  give  full  scope  to  his  valor. 

43.  If  then  he  did  not  choose  to  slay  him,  when  he  might  have 
done  so  with  the  gratitude  of  every  one,  is  it  likely  that  he  should 
have  chosen  to  do  so  when  some  people  were  sure  to  complain  of 
it?  If  he  did  not  venture  to  do  it  when  he  might  have  done  so 
lawfully,  when  he  had  both  place  and  time  in  his  favor,  when  he 
might  have  done  so  with  impunity,  can  we  believe  that  he  did  not 
hesitate  to  slay  him  unjustly  at  a  time  and  place  which  supplied 
him  with  no  excuse  for  the  deed,  when  it  was  at  the  hazard  of  his 
life?  especially,  O  judges,  when  the  day  of  contest  for  the  greatest 
distinction  of  the  state,  and  the  day  of  the  comitia,  was  at 
hand.   .   .   . 

44.  Did  Milo  then,  keeping  in  view  this  long  hoped-for  and 
wished-for  day  of  the  Campus  Martins,  propose  to  himself  to  come 
to  those  venerable  auspices  of  the  centuries  with  bloody  hands,  own- 
ing and  confessing  a  wickedness  and  a  crime?  How  perfectly 
incredible  is  such  conduct  in  such  a  man !  At  the  same  time, 
how  undoubted  is  it  in  the  case  of  Clodius,  who  thought  that  he 
should  be  a  king  as  soon  as  Milo  was  slain.  What  shall  I  say 
more?  This  is  the  very  mainspring  of  audacity,  O  judges,  for 
who  is  there  who  does  not  know  that  the  greatest  temptation  of 
all  to  do  wrong  is  the  hope  of  impunity?  Now,  in  which  of  the 
two  did  this  exist?     In  Milo?  who  is  even  now  on  his  trial  for 


640  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. . 

an  action  which  I  contend  was  an  illustrious  one,  but  which  was 
at  all  events  a  necessary  one ;  or  in  Clodius  ?  who  had  shown  such 
contempt  for  courts  of  justice  and  punishment,  that  he  took  no 
pleasure  in  anything  which  was  not  either  impious,  from  its  dis- 
regard of  the  prohibitions  of  nature,  or  illegal,  from  its  violation 
of  law. 

But  what  am  I  arguing  about  ?  why  do  I  keep  on  disputing  at 
greater  length?  I  appeal  to  you,  O  Quintus  Petillius,  a  most 
virtuous  and  fearless  citizen :  I  call  you  to  witness,  O  Marcus 
Cato ;  whom  some  heavenly  interposition  has  given  me  for  judges. 
You  have  heard  from  Marcus  Favonius,  and  you  heard  it  too  while 
Clodius  was  alive,  that  he,  Clodius,  had  said  to  him  that  Milo 
would  die  within  three  days,  —  and  on  the  third  day  the  deed 
which  he  had  mentioned  was  put  in  execution.  When  he  did  not 
hesitate  to  reveal  what  he  was  thinking  of,  can  you  have  any 
doubt  what  he  did  ? 

45.  How  then  was  it,  that  he  was  so  correct  in  the  day  ?  I  told 
you  that  just  now.  There  was  no  great  difficulty  in  knowing  the 
regular  days  of  sacrifice  for  the  dictator  of  Lanuvium.  He  saw 
that  it  was  necessary  for  Milo  to  go  to  Lanuvium  on  the  very  day 
in  which  he  did  go,  —  therefore,  he  anticipated  him.  But  on  what 
day?  Why,  on  the  day  on  which,  as  I  have  said  before,  there 
was  a  most  furious  assembly  of  the  people,  stirred  up  by  the 
tribune  of  the  people  whom  he  had  in  his  pay  —  a  day,  and  an 
assembly,  and  an  uproar  which  he  would  never  have  missed  if  he 
had  not  been  hastening  to  some  premeditated  crime.  Therefore, 
he  had  not  only  no  reason  for  going  on  a  journey,  but  he  had  even 
a  reason  for  stopping  at  home.  Milo  had  no  possibility  of  stop- 
ping at  home,  and  he  had  not  only  a  reason,  but  a  positive  neces- 
sity for  going  on  a  journey.  What  more?  Suppose,  while  he 
knew  that  Milo  must  go  on  the  road  on  that  day,  so,  on  the  other 
hand,  Milo  could  not  even  suspect  that  Clodius  would?  For, 
first  of  all,  I  ask,  how  could  Milo  know  it  ?  a  question  which  you 
cannot  ask  respecting  Clodius.  For  even  if  he  had  not  asked 
any  one  beyond  his  own  intimate  friend  Titus  Patina,  he  could 
have  ascertained  from  him  that  on  that  particular  day  a  priest 
must  absolutely  be  appointed  at  Lanuvium  by  Milo  as  the  dictator 
there.  But  there  were  plenty  more  people  from  whom  he  could 
easily  learn  that;  for  instance,  all  the  people  of  Lanuvium.  Of 
whom  did  Milo  make  any  inquiry  about  the  return  of  Clodius? 
Grant  that  he  did  make  inquiry ;  see  what  large  allowances  I  am 
making  you :    grant  even  that  he  bribed  his  slave,  as  my  good 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  641 

friend  Quintus  Arrius  said.  —  Read  the  evidence  of  your  own 
witnesses. 

46.  Caius  Cassinius  Schola,  a  man  of  Interamna,  gave  his 
evidence,  —  a  most  intimate  friend  of  Publius  Clodius,  and  more, 
a  companion  of  his  at  the  very  time;  according  to  whose  testi- 
mony, Publius  Clodius  was  at  Interamna  and  at  Rome  at  the  very 
same  time.  Well,  he  said,  that  Publius  Clodius  had  intended 
to  remain  that  day  at  his  Alban  villa ;  but  that  on  a  sudden  news 
was  brought  to  him,  that  Cyrus  his  architect  was  dead ;  and 
therefore,  that  he  determined  to  proceed  to  Rome  immediately^ 
Caius  Clodius,  who  was  also  a  companion  of  Publius  Clodius, 
said  the  same. 

47.  Take  notice,  O  judges,  what  the  real  effect  of  this  evidence 
must  be.  First  of  all,  Milo  is  certainly  acquitted  of  having  set 
out  with  the  express  intention  of  waylaying  Clodius  on  his  road ; 
this  must  be,  since  there  was  apparently  no  chance  whatever  of 
his  meeting  him.  In  the  next  place,  (for  I  see  no  reason  why  I 
should  not  do  something  for  myself  at  the  same  time,)  you  know, 
O  judges,  that  there  have  been  men  found  to  say,  while  urging 
on  this  bill  against  Milo,  that  the  murder  was  committed  by  the 
hand  indeed  of  Milo,  but  by  the  plan  of  some  one  of  more  impor- 
tance than  he.  Those  abject  and  profligate  men,  forsooth,  pointed 
me  out  as  a  robber  and  assassin.  Now  they  lie  convicted  by  their 
own  witnesses,  who  say  that  Clodius  would  not  have  returned 
to  Rome  that  day  if  he  had  not  heard  the  news  about  Cyrus.  I 
breathed  again ;  I  was  delivered ;  I  am  not  any  longer  afraid  of 
being  supposed  to  have  contemplated  an  action  which  I  could 
not  possibly  have  suspected. 

48.  Now  I  will  examine  the  other  point.  For  this  expression 
occurs  in  their  speech :  '*  Therefore,  Clodius  never  even  thought 
of  the  plot  against  Milo,  since  he  intended  to  remain  in  his  Alban 
villa."  Yes,  he  meant  to  remain  there,  if  he  did  not  rather  intend 
to  go  out  and  commit  a  murder.  For  I  see  that  the  messenger 
who  is  said  to  have  brought  him  news  of  Cyrus's  death  did  not 
announce  that  to  him,  but  told  him  that  Milo  was  at  hand.  For 
why  should  he  bring  any  news  about  Cyrus,  whom  Clodius  had 
left  at  Rome  on  his  deathbed  ?  I  was  with  him  ;  I  signed  his  will 
as  a  witness  together  with  Clodius ;  and  he  had  openly  made  his 
will,  and  had  left  him  and  me  his  heirs.  When  he  had  left  him  the 
day  before,  at  the  third  hour,  at  the  very  point  of  death,  was  news 
sent  express  to  him  the  next  day,  at  the  tenth  hour,  that  he  was 
at  last  dead  ? 


642  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

49.  Well,  be  it  so ;  what  reason  had  he  for  hastening  to  Rome  ? 
for  starting  at  nightfall?  Why  should  the  fact  of  his  being  his 
heir  cause  him  to  make  so  much  haste  ?  In  the  first  place,  there 
was  no  reason  why  there  should  be  need  of  any  haste ;  secondly, 
even  if  there  was,  still  what  was  there  which  he  could  obtain  that 
night,  but  which  he  would  lose  if  he  arrived  at  Rome  early  the 
next  morning  ?  And  as  an  arrival  in  the  city  by  night  was  rather 
to  be  avoided  by  him  than  to  be  desired,  so  it  was  just  suited  for 
Milo  to  lie  in  ambush  and  wait  for  him,  as  he  was  a  plotter  of  that 
sort,  if  he  knew  that  he  was  likely  to  come  to  the  city  by  night. 
He  would  have  slain  him  by  night,  in  a  place  calculated  for  an 
ambush  and  full  of  robbers ;  no  one  would  have  refused  to  believe 
him  if  he  denied  it,  when  now  all  men  wish  to  save  him  even  when 
he  confesses  it.  The  brunt  of  the  blame  would  have  fallen  on  the 
place  itself,  so  well  suited  to  receive  and  conceal  robbers,  while 
neither  the  voiceless  solitude  would  have  informed  against,  nor 
the  dark  night  discovered  Milo;  secondly,  the  numbers  of  men 
who  had  been  insulted  by  Clodius,  or  plundered  by  him,  or  stripped 
of  all  their  property  by  him,  many,  too,  who  were  in  constant  fear 
of  such  misfortunes,  would  have  fallen  under  suspicion ;  in  short, 
the  whole  of  Etruria  would  have  been  impeached  in  people's 
opinion. 

50.  And  certainly  on  that  day  Clodius  returning  from  Aricia, 
did  turn  aside  to  his  Alban  villa.  But  although  Milo  knew  that 
he  was  at  Aricia,  still  he  ought  to  have  suspected  that  he,  even  if 
he  was  desirous  to  return  to  Rome  that  day,  would  turn  aside  to 
his  own  villa,  the  grounds  of  which  skirted  the  road.  Why,  then, 
did  he  not  meet  him  before,  and  prevent  his  going  to  his  villa? 
nor  wait  in  that  place  where  he  would  certainly  arrive  by  night  ? 

51.  I  see  that  all  things  up  to  this  point  are  plain  and  consistent. 
That  it  was  even  desirable  for  Milo  that  Clodius  should  live; 
that  for  Clodius  the  death  of  Milo  was  the  most  advantageous 
thing  possible,  with  reference  to  those  objects  on  which  he  had 
set  his  heart ;  that  he  bore  him  the  most  bitter  hatred,  but  that 
Milo  had  no  such  feelings  toward  him;  that  the  one  lived  in  a 
perpetual  round  of  violence,  that  the  other's  habits  w^ere  limited 
to  repelling  it ;  that  Milo  had  been  threatened  by  him  with  death, 
and  that  his  death  had  been  openly  predicted  by  him ;  that  no 
such  expression  had  ever  been  heard  from  Milo ;  that  the  day  of 
Milo's  journey  was  well  known  to  Clodius,  but  that  Clodius's 
return  was  unknown  to  Milo;  that  the  journey  of  the  one  was 
inevitable,  and  that  of  the  other  was  even  inconvenient  to  him- 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  643 

self ;  that  the  one  had  openly  declared  that  on  that  day  he  should 
set  out  from  Rome,  that  the  other  had  concealed  the  fact  of  his 
intending  to  return  on  that  day ;  that  the  one  had  in  no  respect 
whatever  changed  his  intention,  that  the  other  had  invented  a 
false  pretence  for  changing  his  mind;  that  the  one,  if  he  were 
plotting,  would  naturally  wish  night  to  come  on  when  he  was  near 
the  city,  while  an  arrival  at  the  city  by  night  was  to  be  feared  by 
the  other,  even  if  he  had  no  apprehension  of  danger  from  this 
man. 

52.  Let  us  now  consider  this,  which  is  the  main  point  of  all; 
for  which  of  the  two  the  identical  spot  where  they  did  meet  was 
the  best  suited  for  planting  an  ambush.  But  is  that,  O  judges,  a 
matter  about  which  one  can  possibly  doubt  or  think  seriously  for 
a  moment  ?  In  front  of  Clodius's  farm,  —  that  farm  on  which, 
on  account  of  those  absurd  erections  and  excavations  for  founda- 
tions of  his,  there  were  pretty  well  a  thousand  vigorous  men 
employed,  —  on  that  high  and  raised  ground  belonging  to  his 
adversary,  did  Milo  think  that  he  should  get  the  better  in  the  con- 
test, and  had  he  w^ith  that  view  selected  that  spot  above  all  others  ? 
Or  was  he  rather  waited  for  in  that  place  by  a  man  who  had  con- 
ceived the  idea  of  attacking,  because  of  the  hopes  that  that  par- 
ticular spot  suggested  to  him?  The  facts,  O  judges,  speak  for 
themselves;  facts,  which  are  always  of  the  greatest  weight  in  a 
cause.  If  you  were  not  hearing  of  this  transaction,  but  were 
looking  at  a  picture  of  it,  still  it  would  be  quite  visible  which  of 
the  two  was  the  plotter,  which  was  thinking  no  evil,  when  one  of 
the  two  was  driving  in  a  chariot  wrapped  up  in  a  mantle,  with  his 
wife  sitting  by  his  side.  It  is  hard  to  say  which  was  the  greatest 
hindrance  to  him,  his  dress,  or  his  carriage,  or  his  wife.  How 
could  a  man  be  less  ready  for  battle  than  when  he  was  entangled 
in  a  mantle  as  in  a  net,  hampered  with  a  carriage,  and  fettered 
as  it  were  by  his  wife  clinging  to  him  ?  Look,  on  the  other  hand, 
at  Clodius,  first  setting  out  from  his  villa  ;  all  on  a  sudden  :  why  ? 
It  was  evening.  Why  was  he  forced  to  set  out  at  such  a  time  ? 
Going  slowly.  What  was  the  object  of  that,  especially  at  that 
time  of  night?  He  turns  aside  to  the  villa  of  Pompeius.  To  see 
Pompeius?  He  knew  that  he  was  near  Alsium.  To  see  the 
villa  ?  He  had  been  in  it  a  thousand  times.  What,  then,  was  his 
object?  Delay,  he  wanted  to  waste  the  time.  He  did  not  choose 
to  leave  the  spot  till  Milo  arrived. 

53.  Come  now,  compare  the  journey  of  this  unencumbered 
bandit  with  all  the  hindrances  which  beset  Milo.     Before  this 


644  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Pabt  IV. 

time  he  always  used  to  travel  with  his  wife ;  now  he  was  without 
her.  He  invariably  went  in  a  carriage ;  now  he  was  on  horseback. 
His  train  were  a  lot  of  Greeklings  wherever  he  was  going ;  even 
when  he  was  hastening  to  the  camp  in  Etruria ;  ^  but  this  time 
there  were  no  triflers  in  his  retinue.  Milo,  who  was  never  in  the 
habit  of  doing  so,  did  by  chance  have  with  him  some  musical 
slaves  belonging  to  his  wife,  and  troops  of  maid-servants.  The 
other  man,  who  was  always  carrying  with  him  prostitutes,  worn- 
out  debauchees,  both  men  and  women,  this  time  had  no  one 
with  him  except  such  a  band  that  you  might  have  thought  every 
one  of  them  picked  men.  Why,  then,  was  he  defeated  ?  Because 
the  traveller  is  not  always  murdered  by  the  robber;  sometimes 
the  robber  is  killed  by  the  traveller;  because,  although  Clodius 
in  a  state  of  perfect  preparation  was  attacking  men  wholly  un- 
prepared, still  it  was  the  case  of  a  woman  falling  upon  men.  And, 
indeed,  Milo  was  never  so  utterly  unprepared  for  his  violence,  as 
not  to  be  nearly  sufficiently  prepared.  He  was  always  aware  how 
greatly  it  concerned  the  interest  of  Publius  Clodius  that  he  should 
be  slain,  how  greatly  he  hated  him,  and  how  great  was  his  daring. 
Wherefore,  he  never  exposed  his  life  to  danger  without  some  sort 
of  protection  and  guard,  knowing  that  it  was  threatened,  and  that 
a  large  price,  as  it  were,  was  set  upon  it. 

54.  Add  to  this  consideration  all  the  chances ;  add  the  always 
uncertain  result  of  a  battle,  and  the  common  fortune  of  Mars, 
who  often  overthrows  the  man  who  is  already  exulting  and  strip- 
ping his  enemy,  and  strikes  him  to  the  ground  by  some  mean  agent ; 
add  the  blundering  conduct  of  a  leader  who  had  dined  and  drank, 
and  who  w^as  yawning  and  drowsy;  w^ho,  when  he  had  left  his 
enemy  cut  off  in  the  rear,  never  thought  of  his  companions  on  the 
outskirts  of  his  train ;  and  then  when  he  fell  among  them  in- 
flamed with  anger,  and  despairing  of  saving  the  life  of  their 
master,  he  fell  on  that  punishment  which  the  faithful  slaves 
inflicted  on  him  as  a  retribution  for  their  master's  death.  ^^Tiy, 
then,  has  Milo  emancipated  them?  He  was  afraid,  I  suppose, 
lest  they  should  give  information  against  him ;  lest  they  should 
be  unable  to  bear  pain ;  lest  they  should  be  compelled  by  tortures 
to  confess  that  Publius  Clodius  was  slain  in  the  Appian  road  by 
the  slaves  of  Milo. 

55.  What  need  is  there  of  any  torturer?  What  do  you  want 
to  know  ?  whether  he  was  slain  ?    He  was  slain.     Whether  he  was 

^  That  is,  to  Manlius's  camp  in  Etruria  at  the  time  of  Catiline's  con- 
spiracy in  which,  in  all  probability,  Clodius  was  implicated. 


Chap.  XXIII,  §4,2.]  ORATION   FOR  MILO  645 

slain  lawfully  or  unlawfully?  That  is  beyond  the  province  of 
the  torturer.  For  the  rack  can  only  inquire  into  the  fact ;  it  is  the 
bench  of  judges  that  must  decide  on  the  law. 

56.  Let  us  then  here  confine  our  attention  to  what  must  be  in- 
vestigated in  this  trial.  All  that  you  can  want  to  find  out  by  tor- 
tures we  admit.  But  if  you  prefer  asking  why  he  emancipated 
his  slaves,  rather  than  why  he  gave  them  inadequate  rewards, 
you  are  but  a  bungling  hand  at  finding  fault  with  an  enemy. 
For  Marcus  Cato,  who  says  everything  with  great  wisdom,  and 
consistency,  and  courage,  said  the  same  thing ;  and  he  said,  too, 
in  a  very  turbulent  assembly  of  the  people,  which,  however,  was 
pacified  by  his  authority,  that  those  slaves  were  worthy  not  only 
of  liberty,  but  even  of  every  sort  of  reward  possible,  who  had 
defended  the  life  of  their  master.  For  what  reward  can  be  suffi- 
ciently great  for  such  well-affected,  such  virtuous,  such  faithful 
slaves,  owing  to  whom  it  is  that  he  is  still  alive  ?  Although  even 
that  is  not  putting  it  so  strongly  as  to  say,  that  it  is  owing  to  those 
very  men  that  he  did  not  glut  the  eyes  and  mind  of  his  most 
cruel  enemy  with  his  blood  and  wounds.  And  if  he  had  not  eman- 
cipated them,  then  those  preservers  of  their  master,  those  avengers 
of  wickedness,  those  defenders  of  their  master  from  death,  must 
have  even  been  surrendered  to  torture.  But  in  all  these  misfor- 
tunes the  most  comfortable  reflection  which  Milo  has  is,  that,  even 
if  anything  should  happen  to  himself,  still  he  has  given  them  the 
reward  which  they  deserved. 

57.  But  now  the  examinations  which  have  just  been  conducted 
in  the  hall  of  liberty,  are  said  to  press  against  Milo.  Who  are  the 
slaves  who  have  been  examined?  Do  you  ask?  The  slaves  of 
Publius  Clodius.  Who  demanded  that  they  should  be  examined  ? 
Appius.  Who  produced  them?  Appius.  Where  were  they 
brought  from  ?  From  the  house  of  Appius.  O  ye  good  gods,  what 
can  be  done  with  more  animosity  ?  There  is  no  law  which  author- 
izes slaves  to  be  examined  as  witnesses  against  their  master,  ex- 
cept on  accusations  of  impiety,  as  was  the  case  in  the  prosecution 
instituted  against  Clodius.  Clodius  has  been  raised  nearly  to 
the  gods,  more  nearly  than  even  when  he  penetrated  into  their 
sanctuary,  when  an  investigation  into  the  circumstances  of  his 
death  is  carried  on  like  one  into  a  profanation  of  sacred  ceremonies. 
But  still,  our  ancestors  did  not  think  it  right  that  slaves  should  be 
examined  as  witnesses  against  their  masters,  not  because  the  truth 
could  not  be  discovered,  but  because  it  seemed  a  scandalous  thing 
to  do,  and  more  oppressive  to  the  masters  than  even  death  itself. 


646  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS         [Part  IV. 

Well,  then,  when  the  slaves  of  the  prosecutor  are  examined  as  wit- 
nesses against  the  defendant,  can  the  truth  be  found  out  ? 

58.  Come,  however,  what  was  the  examination ;  and  how  was 
it  conducted  ?  Holloa,  you  Rufio,  (that  name  will  do  as  well  as 
another,)  take  care  you  tell  the  truth.  Did  Clodius  lay  a  plot 
against  Milo?  "He  did."  He  is  sure  to  be  crucified  for  saying 
so.  "Certainly  not."  He  has  hopes  of  obtaining  his  liberty. 
What  can  be  more  certain  than  this  mode  of  examination  ?  The 
men  are  suddenly  carried  off  to  be  examined ;  they  are  separated 
from  all  the  rest,  and  put  into  cells  that  no  one  may  be  able  to 
speak  to  them.  Then,  when  they  have  been  kept  a  hundred  days 
in  the  power  of  the  prosecutor,  they  are  produced  as  witnesses  by 
the  prosecutor  himself.  What  can  be  imagined  more  upright  than 
this  sort  of  examination  ?  What  can  be  more  free  from  all  suspi- 
cion of  corruption? 

59.  And  if  you  do  not  yet  see  with  sufficient  clearness,  (though 
the  transaction  is  evident  of  itself  by  so  many  and  such  irresistible 
arguments  and  proofs,)  that  Milo  was  returning  to  Rome  with  a 
pure  and  guiltless  intention,  with  no  taint  of  wickedness,  under  no 
apprehension,  without  any  consciousness  of  crime  to  disquiet 
him ;  recollect,  I  implore  you,  in  the  name  of  the  immortal  gods, 
how  rapid  his  speed  while  returning  was ;  how  he  entered  the  forum 
while  the  senate-house  was  all  on  fire  with  eagerness ;  how  great 
was  the  magnanimity  which  he  displayed ;  how  he  looked,  and  what 
he  said.  Nor  did  he  trust  himself  to  the  people  only,  but  also  to 
the  senate ;  nor  to  the  senate  only,  but  also  to  the  public  guards 
and  their  arms;  nor  to  them  only,  but  also  to  the- power  of  that 
man  to  whom  the  senate  had  already  entrusted  ^  the  whole  republic, 
all  the  youth  of  Italy,  and  all  the  arms  of  the  Roman  people. 
And  surely  he  never  would  have  put  himself  in  his  power,  if  he 
had  not  been  confident  in  the  justice  of  his  cause ;  especially  as  he 
was  one  who  heard  everything,  and  feared  great  danger,  and  sus- 

1  The  disturbances  on  the  death  of  Clodius  arose  to  such  a  height, 
that  the  senate  at  last  passed  a  resolution  that  Marcus  Lepidus  the 
Interrex,  assisted  by  the  tribunes  of  the  people  and  Pompeius,  should 
take  care  that  the  republic  received  no  injury.  And  at  last  the  senate 
appointed  Pompeius  consul  without  a  colleague,  who  immediately  pub- 
lished several  new  laws,  and  among  them  the  one  under  which  this  trial 
was  conducted,  (see  note  on  p.  623,)  and  he  now  limited  the  duration  of 
trials,  allowing  only  three  days  for  the  examination  of  witnesses,  and  on 
the  fourth  day  the  accuser  was  only  allowed  two  hours  to  enforce  the  accu- 
sation, and  the  defendant  three  hours  to  speak  in  his  defence.  Coelius 
endeavored  to  arrest  these  laws  by  his  veto  as  tribune,  declaring  that  they 
were  framed  solely  with  a  view  to  crush  Milo,  whom  Pompeius  certainly 
desired  to  get  rid  of;  to  effect  which  he  even  descended  to  the  artifice  of 
pretending  to  believe  that  Milo  had  laid  a  plot  to  assassinate  him. 


Chap.  XXIII,  §4,  2.]  ORATION   FOR  MILO  647 

pected  many  things,  and  even  believed  some.  The  power  of 
conscience  is  very  great,  O  judges,  and  is  of  great  weight  on  both 
sides :  so  that  they  fear  nothing  who  have  done  no  wrong,  and 
they,  on  the  other  hand,  who  have  done  wrong  think  that  pun- 
ishment is  always  hanging  over  them. 

60.  Nor,  indeed,  is  it  without  good  reason  that  Milo's  cause 
has  always  been  approved  of  by  the  senate.  For  these  wisest  of 
men  took  into  their  consideration  the  whole  circumstances  of  the 
case;  Milo's  presence  of  mind,  and  vigor  in  defending  himself. 
Have  you  forgotten,  O  judges,  when  the  news  of  Clodius's  death 
was  still  recent,  the  opinions  and  the  language  which  was  held, 
not  only  by  Milo's  enemies,  but  also  by  other  ignorant  people? 
They  said  that  he  would  not  return  to  Rome  at  all.  For  if  he  had 
committed  the  deed  in  a  passionate  and  excited  mood,  so  that  he 
had  slain  his  enemy  while  under  the  influence  of  strong  hatred, 
they  thought  that  he  would  consider  the  death  of  Publius  Clodius 
an  event  of  such  importance,  that  he  would  bear  being  deprived 
of  his  country  with  equanimity,  as  he  had  sated  his  hatred  in 
the  blood  of  his  enemies;  or,  if  he  had  deliberately  intended 
to  deliver  his  country  by  the  slaughter  of  Clodius,  then  they 
thought  that  he,  as  a  brave  man,  would  not  hesitate,  after  having 
brought  safety  to  his  country  at  his  own  risk,  to  submit  with 
equanimity  to  the  laws,  to  carry  oif  with  himself  everlasting 
renown,  and  to  leave  those  things  to  us  to  enjoy  which  he  had 
preserved  for  us  himself. 

61.  Many  also  spoke  of  Catiline  and  the  monsters  of  his  train. 
"We  shall  have  another  Catiline  breaking  out.  He  will  occupy 
some  strong  place ;  he  will  make  war  on  his  country."  Wretched 
sometimes  is  the  fate  of  those  citizens  who  have  faithfully  served 
the  republic !  when  men  not  only  forget  the  illustrious  exploits 
which  they  have  performed,  but  even  suspect  them  of  the  most 
nefarious  designs  !  Therefore,  all  those  things  were  false,  which 
would  certainly  have  turned  out  true  if  Milo  had  committed  any 
act  which  he  could  not  defend  with  honor  and  with  truth. 

62.  What  shall  I  say  of  the  charges  which  were  afterwards 
heaped  upon  him?  which  would  have  crushed  any  one  who  was 
conscious  of  even  trifling  offences.  How  nobly  did  he  support 
them  !  O  ye  immortal  gods,  do  I  say  support  them  ?  Say  rather, 
how  did  he  despise  them,  and  treat  them  as  nothing !  Charges 
which  no  guilty  man,  were  he  ever  so  high-minded,  and,  indeed, 
no  innocent  man,  unless  he  were  also  a  most  fearless  man,  could 
possibly  have  disregarded.     It  was  said  that  a  vast  collection  of 


648  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

shields,  swords,  bridles,  lances,  and  javelins  had  been  seized. 
They  said  that  there  was  no  street,  no  alley  in  the  whole  city,  in 
which  there  was  not  a  house  hired  for  Milo ;  that  arms  had  been 
carried  down  the  Tiber  to  his  villa  at  Oriculum  ;  that  his  house  on 
the  Capitoline  Hill  was  full  of  shields ;  that  every  place  was  full 
of  firebrands  prepared  for  the  burning  of  the  city.  These  things 
were  not  only  reported,  but  were  almost  believed,  and  were  not 
rejected  till  they  had  been  thoroughly  investigated.  I  praised, 
indeed,  the  incredible  diligence  of  Cnseus  Pompeius;  but  still  I 
wdll  say  what  I  really  think,  O  judges. 

63.  Those  men  are  compelled  to  listen  to  too  many  statements ; 
indeed,  they  cannot  do  otherwise,  who  have  the  whole  republic 
entrusted  to  them.  It  was  necessary  even  to  listen  to  that  eat- 
ing-house keeper  Licinius,  if  that  was  his  name,  a  fellow  out  of  the 
Circus  Maximus,  who  said  that  Milo's  slaves  had  got  drunk  in 
his  house,  —  that  they  had  confessed  to  him  that  they  were  en- 
gaged in  a  conspiracy  to  assassinate  Cnseus  Pompeius,  and  that 
he  himself  was  afterwards  stabbed  by  one  of  them  to  prevent  him 
from  giving  information.  He  went  to  Pompeius's  villa  to  tell 
him  this.  I  am  sent  for  among  the  first.  By  the  advice  of  his 
friends,  Pompeius  reports  the  affair  to  the  senate.  It  was  im- 
possible for  me  to  be  otherwise  than  frightened  almost  to  death 
at  the  bare  suspicion  of  such  danger  to  one  who  was  the  protector 
both  of  me  and  of  my  country  :  but  still  I  wondered  that  an  eating- 
house  keeper  should  be  at  once  believed,  —  that  the  confession  of 
the  slaves  should  be  listened  to,  and  that  a  wound  in  the  side, 
which  looked  like  a  prick  of  a  needle,  should  be  admitted  to  be 
a  wound  infiicted  by  a  gladiator.  But,  as  I  take  the  fact  to  have 
been,  Pompeius  was  rather  taking  precautions  than  feeling  any 
actual  alarm,  guarding  not  only  against  those  things  which  it 
was  reasonable  to  fear,  but  also  against  everything  which  could 
possibly  disquiet  you. 

64.  The  house  of  Caius  Caesar,  that  most  illustrious  and  gal- 
lant man,  was  besieged,  as  was  reported,  during  many  hours  of 
the  night.  No  one  in  that  frequented  part  of  the  city  had  either 
seen  or  heard  of  any  such  thing.  Still  such  a  report  was  spread 
about.  I  could  not  possibly  suspect  Cnseus  Pompeius,  a  man  of 
the  most  admirable  valor,  of  being  timid ;  and  I  thought  no  dili- 
gence could  be  over-strained  in  a  man  who  had  undertaken  the 
management  and  protection  of  the  whole  of  the  republic.  In  a 
very  full  meeting  of  the  senate,  lately  held  in  the  Capitol,  a  sena- 
tor was  found  to  say  that  Milo  had  a  weapon  about  him.     He 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  649 

threw  back  his  garments  in  that  most  sacred  temple,  that,  since 
the  life  of  so  good  a  citizen  and  so  good  a  man  could  not  procure 
him  credit,  the  facts  themselves  might  speak  for  him,  while  he 
held  his  peace. 

65.  Every  word  was  ascertained  to  be  a  false  and  treacherous 
invention.  And  if  people  are  even  now  afraid  of  Milo,  we  are  not 
now  under  apprehension  because  of  the  charge  respecting  Clodius, 
but  we  are  shuddering  at  your  suspicions,  —  at  yours,  I  say,  O 
Cnaeus  Pompeius,  (for  I  address  you  yourself,  and  I  speak  loudly 
so  that  you  may  be  able  to  hear  me).  If  you  are  afraid  of  Milo, 
—  if  you  believe  that  he  either  now  cherished  wicked  designs 
against  your  life,  or  that  he  ever  has  entertained  such;  if  the 
levying  of  troops  throughout  Italy,  as  some  of  your  recruiting- 
sergeants  pretend,  —  if  these  arms,  —  if  these  cohorts  in  the 
Capitol,  —  if  these  watchmen,  these  sentinels,  —  if  this  picked 
body  of  youths,  which  is  the  guard  of  your  person  and  your  house, 
is  all  armed  against  an  attack  on  the  part  of  Milo  :  and  if  all  these 
measures  have  been  arranged,  and  prepared,  and  aimed  against 
him  alone,  —  then  certainly  he  must  be  a  man  of  great  power,  of 
incredible  courage ;  surely  it  must  be  more  than  the  power  and 
resources  of  one  single  man  which  are  attributed  to  him,  if  the 
most  eminent  of  our  generals  is  invested  with  a  command,  and  all 
Italy  is  armed  against  this  one  man.  But  who  is  there  who  does 
not  understand  that  all  the  diseased  and  feeble  parts  of  the  republic 
were  entrusted  to  you,  O  Pompeius,  that  you  might  heal  and 
strengthen  them  with  your  arms?  And  if  an  opportunity  had 
been  afforded  to  Milo,  he  would,  doubtless,  have  proved  to  you 
yourself  that  no  man  was  ever  more  dear  to  another  than  you  are 
to  him ;  that  he  had  never  shunned  any  danger  which  might  be 
of"  service  in  promoting  your  dignity ;  that  he  had  often  contended 
against  that  most  foul  pest  on  behalf  of  your  glory ;  that  his  con- 
duct in  his  tribuneship  had  been  entirely  regulated  by  your  coun- 
sels for  the  protection  of  my  safety,  which  was  an  object  very  dear 
to  you;  that  he  afterwards  had  been  defended  by  you  when  in 
danger  of  his  life,^  and  had  been  assisted  by  you  when  he  was  a 
candidate  for  the  prsetorship;  and  that  he  had  always  believed 
that  the  two  firmest  friends  whom  he  had  were  you  and  I,  —  you, 

1  When  Clodius  was  sedile,  lie  instituted  a  prosecution  against  Milo 
for  violence.  Pompeius,  Crassus,  and  Cicero  appeared  for  him ;  and 
though  Clodius's  mob  raised  a  great  uproar,  and  endeavored  to  prevent 
Pompeius  from  being  heard,  he  made  a  long  speech,  lasting  three  hours, 
in  his  defence.  The  trial  was  adjourned  from  February  till  May,  and 
does  not  appear  to  have  ever  been  brought  to  a  regular  termination. 


650  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

as  shown  by  the  kindness  of  your  behavior  to  him,  and  I,  secured 
to  him  by  the  services  which  he  himself  had  done  me.  And  if 
he  could  not  convince  you  of  this,  —  if  that  suspicion  had  sunk 
so  deep  in  your  mind  that  it  could  not  possibly  be  eradicated; 
if,  in  short,  Italy  was  never  to  have  any  rest  from  those  levies, 
nor  the  city  from  arms,  till  Milo  was  ruined,  —  then  no  doubt 
he,  without  hesitation,  would  have  departed  from  his  country, 
a  man  born  to  make  such  sacrifices  and  accustomed  to  make  them  ; 
but  still  he  would  have  cited  you,  O  Magnus,  as  a  witness  in  his 
favor,  as  he  now  does. 

66.  See,  now,  how  various  and  changeable  is  the  course  of 
human  life,  —  how  fickle  and  full  of  revolutions  is  fortune ;  what 
instances  of  perfidy  are  seen  in  friends,  how  they  dissemble  and 
suit  their  behavior  to  the  occasion ;  when  dangers  beset  one,  how 
one's  nearest  connections  fly  off,  and  what  cowardice  they  show. 
The  time  will  come,  ay,  will  most  certainly  come,  —  that  day 
will  surely  dawn  some  time  or  other,  when  you,  though  your 
affairs  are  all,  as  I  trust  they  will  be,  in  a  really  sound  con- 
dition, though  they  may,  perhaps,  w^ear  an  altered  appearance 
in  consequence  of  some  commotion  of  the  times,  such  as  we  are 
all  liable  to,  (and  how  constantly  such  things  happen  we  may  know 
from  experience,)  —  when  you,  I  say,  may  be  in  need  of  the  good- 
will of  one  who  is  most  deeply  attached  to  you,  and  the  good  faith 
of  a  man  of  the  greatest  weight  and  dignity,  and  the  magnanimity 
of  the  very  bravest  man  that  ever  lived  in  the  world.  Although, 
who  would  believe  that  Cnseus  Pompeius,  a  man  most  thoroughly 
versed  in  public  law,  in  the  usages  of  our  ancestors,  and  in  all  the 
affairs  of  the  republic,  after  the  senate  has  entrusted  to  him  the 
charge  of  taking  care  "  that  the  republic  suffered  no  injury,"  by 
which  one  line  the  consuls  have  always  been  sufficiently  armed, 
even  though  no  warlike  weapons  were  given  to  them,  —  that 
he,  I  say,  after  having  had  an  army  and  a  levy  of  troops  given  to 
him,  would  wait  for  a  legal  decision  to  repress  the  designs  of 
that  man  who  was  seeking  by  violence  to  abolish  the  courts  of 
justice  themselves? 

67.  It  was  sufficiently  decided  by  Pompeius,  quite  sufficiently, 
that  all  those  charges  were  falsely  brought  against  Milo;  when 
he  passed  a  law  by  which,  as  I  conceive,  he  was  bound  to  be  ac- 
quitted by  you,  —  at  all  events,  as  all  men  allow,  might  legally 
be  acquitted.  But  when  he  sits  in  that  place,  surrounded  by  all 
those  bands  of  public  guards,  he  declares  plainly  enough  that 
he  is  not  striking  terror  into  you,  (for  what  could  be  less  worthy 


Chap.  XXIII,  §4,  2.]  ORATION   FOR  MILO  651 

of  him  than  to  condemn  a  man  whom  he  himself  might  punish 
if  guilty,  both  by  his  own  authority  and  in  strict  accordance  with 
the  precedents  of  our  ancestors?)  but  that  he  keeps  them  about 
him  for  the  sake  of  protection ;  that  you  may  be  aware  that  it  is 
allowed  to  you  to  decide  with  freedom  according  to  your  own 
opinions,  in  contradiction  to  that  assembly  of  the  people  which 
was  held  yesterday. 

68.  Nor,  O  judges,  am  I  at  all  moved  by  the  accusation  respect- 
ing Clodius.  Nor  am  I  so  insane,  and  so  ignorant  of,  and  ex- 
perienced in,  your  feelings,  as  not  to  be  aware  what  your  opinions 
are  about  the  death  of  Clodius,  concerning  which,  if  I  were  unwill- 
ing to  do  away  with  the  accusation  in  the  manner  in  which  I  have 
done  away  with  it,  still  I  assert  that  it  would  have  been  lawful  for 
Milo  to  proclaim  openly,  with  a  false  but  glorious  boast,  "  I  have 
slain,  I  have  slain,  not  Spurius  Mselius,  who  fell  under  the  sus- 
picion of  aiming  at  kingly  power  by  lowering  the  price  of  corn, 
and  by  squandering  his  own  family  estate,  because  by  that  con- 
duct he  was  thought  to  be  paying  too  much  court  to  the  common 
people;  not  Tiberius  Gracchus,  who,  out  of  a  seditious  spirit, 
abrogated  the  magistracy  of  his  own  colleague;  whose  slayers 
have  filled  the  whole  world  with  the  renown  of  their  name;  but 
him  "  (for  he  would  venture  to  name  him  when  he  had  delivered 
his  country  at  his  own  risk)  "  who  was  detected  in  the  most 
infamous  adultery  in  the  most  sacred  shrine,  by  most  noble  women ; 
him,  by  the  execution  of  whom  the  senate  has  repeatedly  resolved 
that  solemn  religious  observances  required  to  be  propitiated; 
him  whom  Lucius  LucuUus,  when  he  was  examined  on  the  point, 
declared  on  his  oath  that  he  had  detected  in  committing  unhal- 
lowed incest  with  his  own  sister;  him,  who  by  means  of  armed 
bands  of  slaves  drove  from  his  country  that  citizen  whom  the 
senate,  whom  the  Roman  people,  whom  all  nations  had  declared 
to  be  the  savior  of  the  city  and  of  the  lives  of  all  the  citizens; 
him,  who  gave  kingdoms,  took  them  away,  and  distributed  the 
whole  world  to  whomsoever  he  pleased;  him  who,  after  hav- 
ing committed  numberless  murders  in  the  forum,  drove  a  citizen 
of  the  most  extraordinary  virtue  and  glory  to  his  own  house  by 
violence  and  by  arms ;  him,  to  whom  nothing  was  ever  too  im- 
pious to  be  done,  whether  it  was  a  deed  of  atrocity  or  of  lust; 
him,  who  burnt  the  temple  of  the  nymphs,  in  order  to  extinguish 
the  public  record  of  the  census  which  was  committed  to  the  public 
registers ;  lastly,  him  who  acknowledged  no  law,  no  civil  rights,  no 
boundaries  to  any  man's  possessions,  —  who  sought  to  obtain 


652  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

other  people's  estates,  not  by  actions  at  law  and  false  accusations, 
not  by  unjust  claims  and  false  oaths,  but  by  camps,  by  an  army, 
by  regular  standards  and  all  the  pomp  of  war,  —  who,  by  means 
of  arms  and  soldiers,  endeavored  to  drive  from  their  possessions, 
not  only  the  Etrurians,  for  he  thoroughly  despised  them,  but  even 
this  Publius  Varius,  that  most  gallant  man  and  most  virtuous 
citizen,  one  of  our  judges,  —  who  went  into  many  other  people's 
villas  and  grounds  with  architects  and  surveyors,  who  limited  his 
hopes  of  acquiring  possessions  by  Janiculum  and  the  Alps ;  him 
who,  when  he  was  unable  to  prevail  on  an  estimable  and  gallant 
Roman  knight,  Marcus  Paconius,  to  sell  him  his  villa  on  the  Pre- 
lian  Lake,  suddenly  conveyed  timber,  and  lime,  and  mortar,  and 
tools  in  barques  to  the  island,  and  while  the  owner  of  the  island 
was  looking  at  him  from  the  opposite  bank,  did  not  hesitate  to 
build  a  house  on  another  man's  land;  who  said  to  Titus  Fur- 
fanius  —  O  ye  immortal  gods,  what  a  man  !  (for  why  should  I  men- 
tion that  insignificant  woman,  Scantia,  or  that  youth  Aponius, 
both  of  whom  he  threatened  with  death  if  they  did  not  abandon 
to  him  the  possession  of  their  villas  ?)  but  he  dared  to  say  to  Fur- 
fanius,  that  if  he  did  not  give  him  as  much  money  as  he  demanded, 
he  would  carry  a  dead  body  into  his  house,  and  so  raise  a  storm 
of  unpopularity  against  him;  who  turned  his  brother  Appius,  a 
man  connected  with  me  by  the  most  faithful  friendship,  w^hile 
he  was  absent,  out  of  the  possession  of  his  farm ;  who  determined 
to  run  a  wall  across  the  vestibule  of  his  sister's  house  in  such  a 
manner,  and  to  draw  the  line  of  foundation  in  such  a  direction, 
as  not  only  to  deprive  his  sister  of  her  vestibule,  but  of  all  access 
to  her  house,  and  of  her  own  threshold." 

69.  Although  all  these  things  appeared  such  as  might  be  endured, 
—  although  he  attacked  with  equal  fury  the  republic,  and  private 
individuals,  and  men  who  were  at  a  distance,  and  men  who  were 
near,  people  who  had  no  connection  with  him,  and  his  own  rela- 
tions ;  yet  somehow  or  other  the  incredible  endurance  of  the  state 
had  by  long  use  grown  hardened  and  callous.  But  as  for  the 
things  which  were  at  hand,  and  were  impending  over  you,  in  what 
manner  was  it  possible  for  you  either  to  avert  them  or  to  bear  them  ? 
If  he  had  once  obtained  real  power,  —  I  say  nothing  of  our  allies, 
of  foreign  nations,  and  kings,  and  tetrarchs ;  for  you  w^ould  have 
prayed  that  he  might  turn  himself  against  them  rather  than  against 
your  possessions,  your  houses,  and  your  money :  money  do  I  say  ? 
your  children  rather,  —  I  solemnly  swear  he  would  never  have 
restrained  himself  from  your  children  and  from  your  wives.     Do 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  653 

you  think  that  these  things  are  inventions  of  mine?  They  are 
evident ;  they  are  notorious  to  every  one ;  they  are  proved.  Is 
it  an  invention  of  mine  that  he  was  about  to  enlist  an  army  of 
slaves  in  the  city,  by  whose  instrumentality  he  might  take  pos- 
session of  the  whole  republic,  and  of  the  private  fortune  of  every 
one? 

70.  Wherefore,  if  Titus  Annius,  holding  in  his  hand  a  bloody 
sword,  had  cried  out,  "  Come  hither,  I  beg  of  you,  and  listen  to 
me,  O  citizens:  I  have  slain  Publius  Clodius;  with  this  sword 
and  with  this  right  hand  I  have  turned  aside  from  your  necks  the 
frenzied  attacks  of  that  man  whom  we  were  unable  to  restrain  by 
any  laws,  or  by  any  judicial  proceedings  whatever ;  by  my  single 
efforts  has  it  been  brought  to  pass  that  right,  and  equity,  and  laws, 
and  liberty,  and  modesty,  and  chastity  remain  in  this  city ;  " 
would  there  in  truth  have  been  any  reason  to  fear  in  what  manner 
the  city  would  receive  this  announcement?  For  now,  as  it  is, 
who  is  there  who  does  not  approve  of  what  has  been  done? 
who  does  not  praise  it  ?  who  does  not  both  say  and  feel  that  of  all 
men  to  whom  recollection  can  reach  back,  Titus  Annius  has 
done  the  republic  the  greatest  service;  that  of  all  men  he  has 
diffused  the  greatest  joy  among  the  Roman  people,  and  over  the 
whole  of  Italy,  and  throughout  all  nations?  I  cannot  form  a 
conception  of  what  would  have  been  the  old-fashioned  joy  of 
the  Roman  people.  Already  our  age  has  seen  many,  and  those 
most  illustrious  victories,  won  by  consummate  generals;  but 
not  one  of  them  has  brought  with  it  a  joy  that  either  lasted  so  long 
or  that  was  so  excessive  while  it  did  last. 

71.  Commit  this  fact  to  memory,  O  judges.  I  trust  that  you 
and  your  children  will  see  many  happy  days  in  the  republic.  On 
every  such  occasion  these  will  always  be  your  feelings,  —  that  if 
Publius  Clodius  had  been  alive,  you  never  would  have  seen  one 
of  them.  We  have  been  led  now  to  conceive  the  greatest,  and, 
as  I  feel  sure,  the  best-founded  hopes,  that  this  very  day,  this 
most  admirable  man  being  made  our  consul,  when  the  licentious- 
ness of  men  is  checked,  their  evil  passions  put  down,  the  laws  and 
courts  of  justice  reestablished  on  a  firm  footing,  will  be  a  salutary 
day  for  the  republic.  Is  there,  then,  any  one  so  insane  as  to  think 
that  he  could  have  obtained  all  this  while  Publius  Clodius  was 
alive?  What?  why,  what  power  of  perpetual  possession  could 
you  have  had  even  in  those  things  which  you  possess  as  your 
private  property  and  in  the  strictest  sense  your  own,  while  that 
frenzied  man  held  the  reins  of  government  ? 


654  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

72.  I  have  no  fear,  O  judges,  lest  it  should  seem  that,  because 
I  am  inflamed  with  hatred  against  him,  on  account  of  my  own  per- 
sonal enmity  to  the  man,  I  am  vomiting  forth  these  charges  against 
him  with  more  zeal  than  truth.  In  truth,  though  it  is  natural 
that  that  should  be  an  especial  stimulus  to  me,  yet  he  was  so 
completely  the  common  enemy  of  all  men,  that  my  own  hatred 
only  bore  about  its  fair  proportion  to  the  general  detestation  with 
which  he  was  regarded.  It  cannot  be  expressed,  O  judges,  it 
cannot  even  be  imagined,  how  much  wickedness,  how  much 
mischief  there  was  in  that  man. 

73.  Moreover,  attend  to  me  with  this  idea,  O  judges.  This 
investigation  relates  to  the  death  of  Publius  Clodius.  Imagine 
in  your  minds,  —  for  our  thoughts  are  free,  and  contemplate  what- 
ever they  choose  in  such  a  manner  that  we  do  discern  those  things 
which  we  think  we  see ;  —  place,  therefore,  before  your  mind's 
eye  the  image  of  this  my  condition ;  if  I  am  able  to  induce  you  to 
acquit  Milo,  but  still  only  on  condition  of  Publius  Clodius  being 
restored  to  life.  What  fear  is  that  that  you  show  by  your  coun- 
tenances ?  How  would  he  affect  you  if  alive,  when  even  now  that 
he  is  dead  he  has  so  agitated  you  by  the  bare  thought  of  him? 
.  .  .  Ought,  then,  the  slayer  of  this  man,  if  any  such  slayer  there 
be,  to  have  any  reason,  while  confessing  the  deed,  to  fear  punish- 
ment at  the  hand  of  those  men  whom  he  delivered  by  the  deed  ? 

74.  Grecian  nations  give  the  honors  of  the  gods  to  those  men 
who  have  slain  tyrants.  What  have  I  not  seen  at  Athens  ?  what 
in  the  other  cities  of  Greece  ?  What  divine  honors  have  I  not  seen 
paid  to  such  men  ?  What  odes,  what  songs  have  I  not  heard  in 
their  praise  ?  They  are  almost  consecrated  to  immortality  in  the 
memories  and  worship  of  men.  And  will  you  not  only  abstain 
from  conferring  any  honors  on  the  savior  of  so  great  a  people,  and 
the  avenger  of  such  enormous  wickedness,  but  will  you  even  allow 
him  to  be  borne  off  for  punishment  ?  He  would  confess,  —  I 
say,  if  he  had  done  it,  he  would  confess  with  a  high  and  willing 
spirit  that  he  had  done  it  for  the  sake  of  the  general  liberty;  a 
thing  which  would  certainly  deserve  not  only  to  be  confessed  by 
him,  but  even  to  be  boasted  of. 

75.  In  truth,  if  he  does  not  deny  an  act  from  which  he  seeks 
no  advantage  beyond  being  pardoned  for  having  done  it,  would 
he  hesitate  to  avow  an  action  for  which  he  would  be  entitled  to 
claim  rewards  ?  Unless  indeed  he  thinks  it  more  pleasing  to  you 
to  look  upon  him  as  having  been  the  defender  of  his  own  life, 
rather  than  of  you :   especially  as  from  that  confession,  if  you 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  655 

were  to  choose  to  be  grateful,  he  would  reap  the  very  highest 
honors.   .   .   . 

76.  It  behooves  a  grateful  people  to  reward  those  citizens  who 
have  deserved  well  of  the  republic ;  it  is  the  part  of  a  brave  man, 
not  to  be  so  moved  even  by  execution  itself,  as  to  repent  of  having 
acted  bravely.  Wherefore,  Titus  Annius  may  well  make  the  same 
confession  which  Ahala  made,  which  Nasica,  which  Opimius,  which 
Marius,  which  we  ourselves  have  made ;  and  then,  if  the  republic 
were  grateful,  he  would  rejoice ;  if  ungrateful,  then,  though  under 
the  pressure  of  heavy  misfortune,  he  would  still  be  supported  by 
Ms  own  conscience. 

77.  But,  O  judges,  the  fortune  of  the  Roman  people,  and  your 
felicity,  and  the  immortal  gods,  all  think  that  they  are  entitled 
to  your  gratitude  for  this  service  which  has  been  thus  done  to  you. 
Nor,  indeed,  can  any  one  think  otherwise  except  it  be  a  man  who 
thinks  that  there  is  no  such  thing  at  all  as  any  divine  power  of 
authority  —  a  man  who  is  neither  moved  by  the  vastness  of  your 
empire,  nor  by  that  sun  above  us,  nor  by  the  motions  of  heaven 
and  of  the  stars,  nor  by  the  vicissitudes  and  regular  order  of  things, 
nor  (and  that  is  the  greatest  thing  of  all)  by  the  wisdom  of  our 
ancestors;  who  both  themselves  cultivated  with  the  most  holy 
reverence  the  sacred  rites  and  religious  ceremonies  and  auspices, 
and  also  handed  them  down  to  us  their  posterity  to  be  so  culti- 
vated by  us. 

78.  There  is,  there  is  indeed,  such  a  heavenly  power.  It  is  not 
the  truth,  that  in  these  bodies  and  in  this  feebleness  of  ours  there 
is  something  which  is  vigorous  and  endued  with  feeling,  and 
nothing  which  is  so  in  this  vast  and  beautiful  movement  of  nature. 
Unless  perhaps  some  people  think  that  there  is  no  such  thing  in 
existence  because  it  is  not  apparent,  nor  visible :  just  as  if  we  were 
able  to  see  our  own  mind,  —  that  by  which  we  are  wise,  by  which 
we  have  foresight,  by  which  we  do  and  say  these  very  things  which 
we  are  doing  and  saying ;  or  as  if  we  could  plainly  feel  what  sort 
of  thing  it  is,  or  where  it  is.  That  divine  power,  that  very  same 
divine  power  which  has  often  brought  incredible  prosperity  and 
power  to  this  city,  has  extinguished  and  destroyed  this  mischief ; 
by  first  of  all  inspiring  it  with  the  idea  of  venturing  to  irritate  by 
violence  and  to  attack  with  the  sword  the  bravest  of  men,  and 
so  leading  it  on  to  be  defeated  by  the  man  whom  if  it  had  only 
been  able  to  defeat  it  would  have  enjoyed  endless  licence  and  im- 
punity. That  result  was  brought  about,  O  judges,  not  by  human 
wisdom,  nor  even  by  any  moderate  degree  of  care  on  the  part  of 


656  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part.  IV. 

the  immortal  gods.  In  truth,  those  very  holy  places  themselves 
which  beheld  that  monster  fall,  appear  to  have  been  moved 
themselves,  and  to  have  asserted  their  rights  over  him. 

79.  I  implore  you,  I  call  you  to  witness,  —  you,  I  say,  O  ye 
Alban  hills  and  groves,  and  you,  O  ye  altars  of  the  Albans,  now 
overthrown,  but  nevertheless  partners  of  and  equals  in  honor  with 
the  sacred  rites  of  the  Roman  people,  —  ye,  whom  that  man  with 
headlong  insanity,  having  cut  down  and  destroyed  the  most  holy 
groves,  had  overwhelmed  with  his  insane  masses  of  buildings; 
it  was  your  power  then  that  prevailed,  it  was  the  divinity  of  your 
altars,  the  religious  reverence  due  to  you,  and  which  he  had  pro- 
faned by  every  sort  of  wickedness,  that  prevailed ;  and  you,  too, 

0  sacred  Jupiter  of  Latium,  whose  lakes  and  groves  and  boundaries 
he  had  constantly  polluted  with  every  sort  of  abominable  wicked- 
ness and  debauchery,  you  at  last,  from  your  high  and  holy  moun- 
tain, opened  your  eyes  for  the  purpose  of  punishing  him ;  it  is 
to  you,  to  all  of  you,  that  those  punishments,  late  indeed,  but  still 
just  and  well  deserved,  have  been  made  an  atonement  for  his 
wickedness. 

80.  Unless,  perchance,  we  are  to  say  that  it  was  by  accident  that 
it  happened  that  it  was  before  the  very  shrine  of  the  Good  Goddess 
which  is  in  the  farm  of  Titus  Sextus  Gallius,  a  most  honorable  and 
accomplished  young  man,  —  before  the  Good  Goddess  herself, 

1  say,  that  when  he  had  begun  the  battle,  he  received  that  first 
wound  under  which  he  gave  up  that  foul  soul  of  his ;  so  that  he 
did  not  seem  to  have  been  acquitted  in  that  iniquitous  trial,  but 
only  to  have  been  reserved  for  this  conspicuous  punishment. 

81.  Nor,  indeed,  did  that  same  anger  of  the  gods  abstain  from 
inflicting  the  very  same  insanity  on  his  satellites,  so  that  without 
the  images  of  his  ancestors,  without  any  funeral  song  or  funeral 
games,  without  any  obsequies,  any  lamentation,  or  any  panegyric, 
—  without,  in  short,  any  funeral  at  all,  smeared  over  with  gore 
and  mud,  and  deprived  even  of  the  honors  which  are  paid  to  every 
one  on  that  last  day,  and  which  even  enemies  are  wont  to  allow 
to  a  man,  he  was  cast  out  in  the  street  half  burnt.  It  was  not 
right,  I  suppose,  for  the  effigies  of  most  illustrious  men  to  confer  any 
honor  on  that  most  foul  parricide ;  nor  was  there  any  place  in 
which  it  was  more  seemly  that  his  corpse  should  be  ill-treated 
than  that  where  his  life  had  been  condemned. 

82.  I  swear  to  you,  the  fortune  of  the  Roman  people  appeared 
to  me  hard  and  cruel,  while  it  for  so  many  years  beheld  and  endured 
that  man  triumphing  over  the  republic.     He  had  polluted  the 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  657 

holiest  religious  observances  with  his  debauchery ;  he  had  broken 
the  most  authoritative  decrees  of  the  senate;  he  had  openly 
bought  himself  from  the  judges  with  money;  he  had  harassed 
the  senate  in  his  tribuneship ;  he  had  rescinded  acts  which  had 
been  passed  for  the  sake  of  the  safety  of  the  republic,  by  the  con- 
sent of  all  orders  of  the  state ;  he  had  driven  me  from  my  country ; 
he  had  plundered  my  property ;  he  had  burnt  my  house ;  he  had 
ill-treated  my  children  and  my  wife;  he  had  declared  a  wicked 
war  against  Cnseus  Pompeius ;  he  had  made  slaughter  of  magis- 
trates and  private  individuals;  he  had  burnt  the  house  of  my 
brother;  he  had  laid  waste  Etruria;  he  had  driven  numbers  of 
men  from  their  homes  and  their  professions.  He  kept  pursuing 
and  oppressing  men ;  the  whole  state,  all  Italy,  all  the  provinces, 
all  foreign  kingdoms  could  not  contain  his  frenzy.  Laws  were 
already  being  drawn  up  in  his  house  which  were  to  hand  us  over 
to  the  power  of  our  slaves.  There  was  nothing  belonging  to  any 
one,  which  he  had  taken  a  fancy  to,  which  he  did  not  think  would 
become  his  in  the  course  of  this  year.  No  one  was  an  obstacle 
to  his  expectations  except  Milo;  the  very  man  who  was  most 
able  to  be  an  obstacle  to  them  he  thought  when  he  returned 
again  would  be  reconciled  and,  as  it  were,  bound  to  him.  The 
power  of  Caesar,  he  said,  was  all  his  own.  The  inclinations  of 
all  good  men  he  had  treated  with  contempt,  while  accomplish- 
ing my  ruin.     Milo  alone  weighed  on  his  mind. 

83.  On  this  the  immortal  gods,  as  I  have  said  before,  put  into 
the  head  of  that  abandoned  and  frantic  man  the  idea  of  laying 
an  ambush  for  Milo.  That  pest  was  not  to  perish  any  other  way ; 
the  republic  would  never  have  chastened  him  by  her  law^s.  The 
senate,  I  suppose,  would  have  been  able  to  restrain  him  when 
praetor.  Why,  it  had  not  been  able  to  do  anything  when  it  tried 
to  restrain  him  while  a  private  individual.  Would  the  consuls 
have  been  vigorous  in  bridling  the  praetor?  In  the  first  place, 
if  Milo  had  been  slain,  he  would  have  had  his  own  consuls.  Sec- 
ondly, what  consul  would  have  behaved  fearlessly  against  him 
as  praetor,  who  remembered  that  he,  when  tribune,  had  offered 
the  most  cruel  injuries  to  the  virtue  of  the  consuls?  He  would 
have  oppressed  everything ;  he  would  have  taken  possession  and 
held  possession  of  everything.  By  a  new  law,  the  draught  of  which 
was  found  in  his  house,  with  the  rest  of  the  Clodian  laws,  he  would 
have  made  all  our  slaves  his  own  freedmen.  Lastly,  if  the  im- 
mortal gods  had  not  inspired  him  with  such  ideas  that  he,  an 
effeminate  creature  attempted  to  slay  a  most  gallant  man,  you 


658  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

would  have  no  republic  at  all  this  day.  Would  that  man  when 
praetor,  much  more  when  consul,  provided  only  that  these  temples 
and  these  walls  could  have  stood  so  long  if  he  had  been  alive,  and 
could  have  remained  till  his  consulship ;  would  he,  I  say,  if  alive, 
have  done  no  harm,  when  even  after  he  was  dead  he  burned  the 
senate-house,  one  of  his  satellites,  Sextus  Clodius,  being  the  ring- 
leader in  the  tumult?  What  more  miserable,  more  grievous, 
more  bitter  sight  have  we  ever  seen  than  that  ?  that  that  temple 
of  sanctity,  of  honor,  of  wisdom,  of  the  public  council,  the  head 
of  the  city,  the  altar  of  the  allies,  the  harbor  of  all  nations,  the 
abode  granted  by  the  universal  Roman  people  to  one  of  the  orders 
of  the  state,  should  be  burnt,  profaned  and  destroyed  ?  ^  and  that 
that  should  be  done,  not  by  an  ignorant  mob,  although  that  would 
have  been  a  miserable  thing,  but  by  one  single  person?  who,  if 
he  dared  so  much  in  his  character  of  burner  of  a  dead  man,  what 
would  he  not  have  done  as  a  standard-bearer  of  a  living  one? 
He  selected  the  senate-house,  of  all  the  places  in  the  city,  to  throw 
him  down  in,  in  order  that  when  dead  he  might  burn  what  he  had 
overturned  while  alive. 

84.  And  are  there  men,  then,  who  complain  of  what  took 
place  in  the  Appian  road,  and  say  nothing  of  what  happened  in 
the  senate-house  ?  and  who  think  that  the  forum  could  have  been 
defended  from  him  when  alive,  whose  very  corpse  the  senate- 
house  was  unable  to  resist  ?  Arouse  the  man  himself ;  resuscitate 
him,  if  you  can,  from  the  shades  below.  Will  you  be  able  to  check 
his  violence  when  alive,  when  you  were  hardly  able  to  support  his 
fury  while  he  lies  unburied?  unless,  indeed,  you  did  support  the 
sight  of  those  men  who  ran  with  firebrands  to  the  senate-house, 
with  scythes  to  the  temple  of  Castor,  and  who  ranged  over  the 
whole  forum  sword  in  hand.  You  saw  the  Roman  people  slaugh- 
tered, you  saw  the  assembly  disturbed  by  the  drawn  swords,  while 
Marcus  Coilius,  a  tribune  of  the  people,  was  listened  to  in  silence, 
a  man.  of  the  greatest  courage  in  the  affairs  of  state,  of  the  greatest 
firmness  in  any  cause  which  he  undertook,  wholly  devoted  to  the 

1  When  Clodius  was  killed,  his  slaves  fled,  and  left  his  dead  body 
in  the  road ;  and  it  was  brought  to  Rome  the  next  day  by  Sextus  Tedius, 
a  senator,  who  was  passing  by  and  saw  it ;  and  then  it  was  exposed  to  the 
view  of  the  populace  of  the  city.  The  next  day  the  mob,  headed  by  Sextus 
Clodius,  carried  the  body  naked,  so  as  to  show  his  wounds,  into  the  forum, 
and  placed  it  on  the  rostra;  and  then  the  tribunes  harangued  the  people 
on  the  subject,  and  wrought  them  up  to  such  a  pitch  of  excitement,  that, 
snatching  up  the  body,  they  carried  it  into  the  senate-house,  and  tearing 
up  the  benches  and  tables,  dressed  up  a  funeral  pile  on  the  spot,  and,  to- 
gether with  the  body,  burnt  the  senate-house  itself,  with  the  Basilica 
Porcia  which  joined  it. 


Chap.  XXIII,  §  4,  2.]  ORATION   FOR  MILO  659 

service  of  the  virtuous  part  of  the  citizens,  and  to  the  authority 
of  the  senate,  and  in  this  —  shall  I  say  unpopularity,  or  misfor- 
tune of  Milo's?  behaving  with  singular,  and  god-like,  and 
incredible  good  faith. 

85.  But  I  have  said  enough  about  the  cause ;  and,  perhaps  too 
much  that  was  foreign  to  the  cause.  What  remains,  except  for 
me  to  pray  and  entreat  you,  O  judges,  to  show  that  mercy  to  a 
most  gallant  man,  which  he  himself  does  not  implore ;  but  which 
I,  even  against  his  will,  implore  and  demand  in  his  behalf  ?  .  .   , 


93.  Shall  this  man,  born  for  his  country,  die  in  any  other  land 
except  his  country?  or,  as  it  may  perchance  turn  out,  for  his 
country  ?  Will  you  preserve  the  monuments  of  this  man's  cour- 
age, and  yet  allow  no  sepulchre  containing  his  body  to  exist  in 
Italy  ?  Will  any  one  by  his  vote  banish  this  man  from  this  city, 
when  all  other  cities  will  gladly  invite  him  to  them  if  he  is  driven 
out  from  among  you?  O  happy  will  that  land  be  which  shall 
receive  him !  Ungrateful  will  this  land  be  if  it  banishes  him ; 
miserable  if  it  loses  him. 

94.  However,  I  must  make  an  end.  Nor,  indeed,  can  I  speak 
any  longer  for  weeping ;  and  this  man  forbids  me  to  defend  him 
by  tears.  I  pray  and  entreat  you,  O  judges,  when  you  are  giving 
your  votes,  to  dare  to  decide  as  you  think  just.  And  believe  me 
that  man  ^  will  be  sure  greatly  to  approve  of  your  virtue,  and 
justice,  and  good  faith ;  who,  in  selecting  the  judges,  selected  all 
the  best,  and  wisest,  and  most  fearless  men  whom  he  cpuld 
find.2 

^  Cnseus  Pompeius. 

2  Milo,  as  has  been  said  before,  was  convicted  by  a  majority  of  thirty- 
eight  to  thirteen,  though  Cato  voted  openly  for  his  acquittal.  He  went 
into  exile  to  Marseilles.  Some  years  afterwards,  a.u.c.  706,  Coelius, 
when  praetor,  recalled  him  from  banishment,  and  endeavored  to  raise 
some  public  commotion  in  favor  of  Pompey,  between  whom  and  Caesar 
(who  was  in  his  second  consulship)  the  civil  war  was  just  breaking  out. 
But  he  and  Coelius  were  both  killed  by  the  soldiers  with  whom  they  were 
tampering. 


660  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

Section  5.     GERMANIC 

Section  5.    Formulae  Liturgic^  in  Use  at  Ordeals^ 

A.    The  Judgment  of  the  Glowing  Iron 

After  the  accusation  has  been  lawfully  made,  and  three  days 
have  been  passed  in  fasting  and  prayer,  the  priest,  clad  in  his 
sacred  vestments  with  the  exception  of  his  outside  garment,  shall 
take  with  a  tongs  the  iron  placed  before  the  altar;  and,  singing 
the  hymn  of  the  three  youths,  namely,  "Bless  him  all  his  works," 
he  shall  bear  it  to  the  fire,  and  shall  say  this  prayer  over  the  place 
where  fire  is  to  carry  out  the  judgment:  "Bless,  O  lord  God, 
this  place,  that  there  may  be  for  us  in  it  sanctity,  chastity,  virtue 
and  victory,  and  sanctimony,  humility,  goodness,  gentleness  and 
plenitude  of  law,  and  obedience  to  God  the  Father  and  the  Son 
and  the  Holy  Ghost."  —  After  this,  the  iron  shall  be  placed  in  the 
fire  and  shall  be  sprinkled  with  holy  water ;  and  while  it  is  heat- 
ing, he  shall  celebrate  mass.  But  when  the  priest  shall  have 
taken  the  Eucharist,  he  shall  adjure  the  man  who  is  to  be  tried 
.  .  .  and  shall  cause  him  to  take  the  communion,  —  Then  the 
priest  shall  sprinkle  holy  water  above  the  iron  and  shall  say : 
"The  blessing  of  God  the  Father,  the  Son,  and  the  Holy  Ghost 
descend  upon  this  iron  for  the  discerning  of  the  right  judgment  of 
God."  And  straightway  the  accused  shall  carry  the  iron  to  a  dis- 
tance of  nine  feet.  Finally  his  hand  shall  be  covered  under  seal 
for  three  days,  and  if  festering  blood  be  found  in  the  track  of  the 
iron,  he  shall  be  judged  guilty.  But  if,  however,  he  shall  go  forth 
uninjured,  praise  shall  be  rendered  to  God. 

B.    Judgment  of  the  Ploughshares 

Lord  God  omnipotent  ...  we  invoke  Thee,  and,  as  suppliants, 
exhort  Thy  majesty,  that  in  this  judgment  and  test  Thou  will'st 
order  to  be  of  no  avail  all  the  wiles  of  diabolical  fraud  and  in- 
genuity, the  incantations  either  of  men  or  of  women,  also  the 
properties  of  herbs ;  so  that  to  all  those  standing  around  it  may 
be  apparent,  that  Thou  art  just  and  lovest  justice,  and  that  there 
is  none  who  may  resist  Thy  majesty.     And  so  O  Lord,  Ruler  of 

1  [Reprinted  from  Ernest  F.  Henderson's  "Select  Documents  of  the 
Middle  Ages,"  London,  G.  Bell  &  Sons,  Ltd.,  1912,  with  the  consent  of 
the  publisher  and  The  Maemillan  Company,  New  York.  Translated  from 
Gengler:  "Germanische  Reehtsdenkmaler,"  pp.  759-765;  also  published 
by  de  Roziere,  Recueil  II.,  770-884.] 


Chap.  XXIII,  §  5.]  FORMULA   LITURGICE  661 

the  heavens  and  the  earth,  creator  of  the  waters,  king  of  thy  whole 
creation,  in  Thy  holy  name  and  strength  we  bless  these  plough- 
shares, that  they  may  render  a  true  judgment;  so  that  if  so  be 
that  that  man  is  innocent  of  the  charge  in  this  matter  which  we 
are  discussing  and  treating  of  amongst  us,  who  walks  over  them 
with  naked  feet :  thou,  O  omnipotent  God,  as  thou  didst  deliver 
the  three  youths  from  the  fiery  furnace,  and  Susanna  from  the 
false  charge,  and  Daniel  from  the  den  of  lions,  —  so  thou  may'st 
see  fit,  by  Thy  potent  strength,  to  preserve  the  feet  of  the  inno- 
cent safe  and  uninjured.  If,  moreover,  that  man  be  guilty  in 
the  aforesaid  matter ;  and,  the  devil  persuading,  shall  have  dared 
to  tempt  Thy  power,  and  shall  walk  over  them  :  do  Thou,  who  art 
just  and  a  Judge,  make  a  manifest  burn  to  appear  on  his  feet, 
to  Thy  honour  and  praise  and  glory;  to  the  constancy  and  con- 
fidence in  Thy  name,  moreover,  of  us  thy  servants;  to  the  con- 
fusion and  repentance  of  their  sins  of  the  perfidious  and  the 
blind;  so  that,  against  their  will,  they  may  perceive,  what  will- 
ingly they  would  not,  —  that  Thou,  living  and  reigning  from 
ages  to  ages,  art  the  judge  of  the  living  and  the  dead.     Amen. 


C.    The  Judgment  of  Boiling  Water 

Having  performed  the  mass  the  priest  shall  descend  to  the 
place  appointed,  where  the  trial  itself  shall  be  gone  through  with ; 
he  shall  carry  with  him  the  book  of  the  gospels  and  a  cross,  and 
shall  chant  a  moderate  litany ;  and  when  he  shall  have  completed 
that  litany,  he  shall  exorcize  and  bless  that  water  before  it  boils. 
—  After  this  he  shall  divest  him  (the  accused)  of  his  garments,  and 
shall  clothe  him  or  them  with  clean  vestments  of  the  church  — 
that  is,  with  the  garment  of  an  exorcist  or  of  a  deacon  —  and  shall 
cause  him  or  them  to  kiss  the  gospel  and  the  cross  of  Christ ;  and 
he  shall  sprinkle  over  them  some  of  the  water  itself ;  and  to  those 
who  are  about  to  go  into  the  Judgment  of  God,  to  all  of  them, 
he  shall  give  to  drink  of  that  same  holy  water.  And  when  he 
shall  have  given  it,  moreover,  he  shall  say  to  each  one :  "  I  have 
given  this  water  to  thee  or  to  you  for  a  sign  to-day."  Then 
pieces  of  wood  shall  be  placed  under  the  cauldron,  and  the  priest 
shall  say  .  .  .  prayers  when  the  water  itself  shall  have  begun  to 
grow  warm.  —  And  he  who  puts  his  hand  in  the  water  for  the  trial 
itself,  shall  say  the  Lord's  prayer,  and  shall  sign  himself  with  the 
sign  of  the  cross ;  and  that  boiling  water  shall  hastily  be  put  down 
near  the  fire,  and  the  judge  shall  suspend  that  stone,  bound  to 


662  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

that  measure,  within  that  same  water  in  the  accustomed  way; 
and  thus  he  who  enters  to  be  tried  by  the  judgment  shall  extract 
it  thence  in  the  name  of  God  himself.  Afterwards,  with  great 
diligence,  his  hand  shall  thus  be  wrapped  up,  signed  with  the  seal 
of  the  judge,  until  the  third  day;  when  it  shall  be  viewed  and 
judged  of  by  suitable  men. 

D.    Test  of  the  Cold  Water 

Consecration  to  be  said  over  the  man.  May  omnipotent  God, 
who  did  order  baptism  to  be  made  by  water,  and  did  grant  remis- 
sion of  sins  to  men  through  baptism  :  may  He,  through  His  mercy, 
decree  a  right  judgment  through  that  water.  If,  namely,  thou 
art  guilty  in  that  matter,  may  the  water  which  received  thee  in 
baptism  not  receive  thee  now;  if,  however,  thou  art  innocent,, 
may  the  water  which  received  thee  in  baptism  receive  thee  now. 
Through  Christ  our  Lord. 

Afterwards  he  shall  exorcise  the  water  thus:  I  adjure  thee,  water, 
in  the  name  of  the  Father  Almighty,  who  did  create  thee  in  the 
beginning,  who  also  did  order  thee  to  be  separated  from  the  waters 
above,  .  .  .  that  in  no  manner  thou  receive  this  man,  if  he  be 
in  any  way  guilty  of  the  charge  that  is  brought  against  him ;  by 
deed,  namely,  or  by  consent,  or  by  knowledge,  or  in  any  way : 
but  make  him  to  swim  above  thee.  And  may  no  process  be  em- 
ployed against  thee,  and  no  magic  which  may  be  able  to  conceal 
that  (fact  of  his  guilt). 

E.    Judgment  of  the  Morsel 

(Prayer.)  Holy  Father,  omnipotent,  eternal  God,  maker  of 
all  things  visible  and  of  all  things  spiritual;  who  dost  look  inta 
secret  places,  and  dost  know  all  things;  who  dost  search  the 
hearts  of  men,  and  dost  rule  as  God,  I  pray  Thee,  hear  the  words 
of  my  prayer :  that  whoever  has  committed  or  carried  out  or 
consented  to  that  theft,  —  that  bread  and  cheese  may  not  be  able 
to  pass  through  his  throat. 

(Exorcism.)  "I  exorcize  thee,  most  unclean  dragon,  ancient 
serpent,  dark  night,  through  the  word  of  truth  and  the  sign  of 
light,  through  our  Lord  Jesus  Christ  the  immaculate  Lamb  gener- 
ated by  the  Most  High,  conceived  of  the  Holy  Spirit,  born  of  the 
Virgin  Mary  —  whose  coming  Gabriel  the  archangel  did  announce ; 
whom  seeing,  John  did  call  out :  this  is  the  living  and  true  Son  of 


Chap.  XXIII,  §  5.]  FORMULA   LITURGIC^  663 

God  —  that  in  no  wise  may'st  thou  permit  that  man  to  eat  this 
bread  and  cheese,  who  has  committed  this  theft  or  consented  to 
it  or  advised  it.  Adjured  through  Him  who  is  to  come  to  judge 
the  quick  and  the  dead,  do  thou  close  his  throat  with  a  band,  not, 
however,  unto  death." 

And  thou  shalt  repeat  those  prayers  three  times.  And,  before 
thou  say  est  those  prayers,  thou  should 'st  write  on  the  bread  itself 
the  Lord's  prayer.  And  of  that  bread  thou  should'st  weigh  out 
ten  denars  weight,  and  of  the  cheese  likewise.  And  thou  should'st 
place  the  bread  and  the  cheese  at  the  same  time  in  his  mouth, 
and  make  two  crosses  of  poplar  wood,  and  put  one  under  his  right 
foot;  and  the  other  cross  the  priest  shall  hold  with  his  hand 
above  his  (the  accused's,  head,  and  shall  throw  above  his  head  that 
theft  written  on  a  tablet.  And  when  thou  dost  place  that  bread 
in  his  mouth,  thou  should'st  say  the  following  conjuration : 

(Conjuration.)  I  conjure  thee,  O  man,  through  the  Father  and 
the  Son  and  the  Holy  Spirit,  and  through  the  twenty-four  elders 
who  daily  sound  praises  before  God,  and  through  the  twelve 
patriarchs,  through  the  twelve  prophets,  and  through  the 
twelve  apostles,  and  the  evangelists,  through  the  martyrs, 
through  the  confessors,  through  the  virgins,  and  through  all 
the  saints,  and  through  our  Redeemer,  our  Lord  Jesus  Christ, 
who  for  our  salvation  and  for  our  sins,  did  suffer  His  hands 
to  be  affixed  to  the  cross :  that  if  thou  werst  a  partner  in 
this  theft,  or  did'st  know  of  it,  or  have  any  fault  in  it,  that 
bread  and  cheese  may  not  pass  thy  gullet  and  throat :  but  that 
thou  may'st  tremble  like  an  aspen-leaf,  amen ;  and  not  have  rest, 
O  man,  until  thou  dost  vomit  it  forth  with  blood,  if  thou  hast 
committed  aught  in  the  matter  of  the  aforesaid  theft.  Through 
Him  who  liveth,  etc. 


F.    Judgment  with  the  Psalter 

One  piece  of  wood  shall  be  made  with  a  button  on  top,  and 
shall  be  put  in  a  psalter  above  this  verse  :  "Thou  art  just  O  Lord 
and  righteous  are  Thy  judgments,"  and  the  psalter  being  closed 
shall  be  strongly  pressed,  the  button  projecting.  Another  piece 
of  wood  also  shall  be  made  with  a  hole  in  it,  in  which  the  button 
of  the  former  piece  shall  be  placed  so  that  the  psalter  hangs  from 
it  and  can  be  turned.  Let  two  persons,  moreover,  hold  the  wood, 
the  psalter  hanging  in  the  middle ;  and  let  him  who  is  suspected 
be  placed  before  them.     And  one  of  those  who  holds  the  psalter 


664  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

shall  say  to  the  other,  thrice,  as  follows:  "He  has  this  thing" 
{i.e.  the  thing  stolen).  The  other  shall  reply  thrice:  "He  has  it 
not."  Then  the  priest  shall  say:  "This  He  will  deign  to  make 
manifest  unto  us,  by  whose  judgment  are  ruled  things  terrestrial 
and  things  celestial.  Thou  art  just,  O  Lord,  and  righteous  are 
Thy  judgments.  Turn  away  the  evils  of  my  enemies,  and  destroy 
them  with  Thy  truth." 

(Prayer.)  Omnipotent  everlasting  God,  who  did'st  create  all 
things  from  nothing,  and  did'st  form  man  from  the  clay  of  the 
earth,  we  pray  thee  as  suppliants  through  the  intercession  of 
Mary  the  most  holy  mother  of  God  .  .  .  that  Thou  do  make  trial 
for  us  concerning  this  matter  about  which  we  are  uncertain :  so 
that  if  so  be  that  this  man  is  guiltless,  that  book  which  we  hold 
in  our  hands  shall  (in  revolving)  follow  the  ordinary  course  of  the 
sun ;  but  if  he  be  guilty  that  book  shall  move  backwards. 


Chapter  XXIV 

DOCUMENTS 

Section  1.    EGYPTIAN 

NO  1.    THE  TESTAMENTARY  ENACTMENT  OF  AN  UN- 
KNOWN  OFFICIAL,   ESTABLISHING  THE   ENDOWMENT  OF 
HIS  TOMB  BY  THE  PYRAMID   OF  KHAFRE^ 

Introduction 

1.  .  .  .  while  he  was  alive  upon  his  two  feet,  even  the 
sole  companion,  lord  of  Nekhen,  member  of  the  king's  court  every 
day  .  .  .  local  governor  of  "Praise-of-Horus-First-of-Heaven,"  ^ 
.   .  .  these  mortuary  priests  forever  ^  .   .   .   .^ 

Endowment  is  Entailed 

2.  .  .  .  This  is  the  [dec]ree  which  I  made  concerning  it :  I 
have  not  empowered  .  .  .  any  of  [my  brothers],  my  sisters,  or  my 
daughter's  children,  inferior  mortuary  priests,  or  assistant  mortuary 
priests,  [to  take  lands,]  people,  or  anything  which  I  have  conveyed 
to  them,  for  making  mortuary  offerings  to  me  therewith,  whether 
their  man-servant  [or  their  maid-servant],  their  brothers  or  their 
sisters,  save  to  make  mortuary  offerings  [to  me  therewith,  in  the 
cemetery  in]  my  eternal  tomb  which  is  at  the  pyramid,  "  Great-is- 

^  [Reprinted,  by  permission,  from  "Ancient  Records  of  Egypt," 
Vol.  I,  p.  97  seq.,  by  James  H.  Breasted,  University  of  Chicago  Press, 
1906.]  — -^ 

As  a  revelation  of  the  legal  organization  of  this  remote  age  [Fourth 
Dynasty  —  2900-2750  b.c]  this  document  is  of  great  interest.  Eco- 
nomically it  is  of  importance  to  note  that  the  king  gives  whole  towns  as 
mortuary  endowment,  to  keep  the  tomb  of  the  deceased  constantly  sup- 
plied with  offerings. 

Stela  in  Cairo  (No.  1432);  published  by  Brugsch,  ''Thesaurus,"  V, 
1210  ff . ;  Sethe,  "Urkunden,"  I,  11-15  (collated  with  Berlin  squeeze. 
No.  1597). 

2  Name  of  a  vineyard  estate  founded  by  Zoser  of  the  Third  Dynasty ; 
see  Sethe,  in  Garstang's  "Bet-Khallaf,"  21.  I  have  omitted  before  this 
title  a  repetition  of  titles  already  mentioned. 

^Probably  so  rather  than  ''endowment.'' 

^  Probably  a  lacuna  of  more  than  one  line. 

665 


666  ANCIENT  AND   PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

Khafre;"  according  to  the  portion  of  lands,  people,  and  [every- 
thing, which  I  have  conveyed  to  them,  for  making  mortuary 
offerings  to  me]  therewith. 


Line  of  Entailment 

3.  I  have  not  empowered  any  mortuary  priest  of  the  endow- 
ment, to  give  the  lands,  people  or  [anything  which  I  have  con- 
veyed to  them,  for  making  mortuary  offerings  to  me]  therewith, 
in  payment  to  any  person ;  or  to  give  as  property  to  any  person, 
except  that  [they]  shall  give  [it  to  their  children],  entitled  to  the 
division  of  it  with  any  mortuary  priest  among  these  mortuary 
priests.^ 

Violation  of  Endowment 

4.  Whatsoever  mortuary  priest  of  the  endowment  shall  violate, 
...  of  my  mortuary  offerings,  which  the  king  gave  to  honor 
me,  the  portion  in  his  possession  shall  be  taken  from  him  .... 

Endowment  not  Involved  in  Suits  of  Priests 

5.  Whatsoever  mortuary  priest  of  the  endowment  shall  institute 
legal  proceedings  against  his  fellow,  and  he  shall  make  a  writ  of 
his  claim  against  the  mortuary  priest,  by  which  [he  (the  defend- 
ant ?)  forfeits  the  portion]  in  his  possession ;  the  lands,  people 
and  everything  shall  be  taken  from  him,  which  I  gave  to  him  for 
making  mortuary  offerings  to  me  therewith  .  .  .  therewith. 
It  shall  be  conveyed  back  to  him  because  of  not  instituting  pro- 
ceedings before  the  officials,  [concerning  the  lands,  people  and  every- 
thing, which  I  conveyed]  to  the  mortuary  priests  of  the  endow- 
ment, for  making  mortuary  offerings  to  me  therewith,  in  my 
eternal  tomb,  which  is  in  the  cemetery  at  [the  pyramid :  "  Great- 
is-Khafre."] 

Transfer  of  Priests  to  Other  Service 

6.  Whatsoever  mortuary  priest  of  the  endowment  shall  go 
forth  to  other  service,  in  the  presence  of  the  official,  .  .  .  the 
officials,  he  shall  go  forth  to  other  service  and  the  portion  on  his 

^  Not  all  their  children  were  entitled  to  a  share  in  the  division,  but  only 
those  who  became  mortuary  priests ;  hence  the  document  distinguishes 
particularly  those  ''entitled  to  (lit.  belonging  to)  the  division  of  it  (the  prop- 
erty) with  any  given  mortuary  priest  of  these  mortuary  priests"  (viz.,  those 
endowed  by  this  document). 


Chap.  XXIV,  §1,2.]  CONTRACTS  OF  HEPZEFI  667 

possession  shall  revert  to  the  (priestly)  order  to  which  he  belonged. 
...  of  lands,  people  and  everything,  which  I  conveyed  [to] 
them,  for  making  mortuary  offerings  to  me  therewith,  in  my  tomb 
which  is  in  [the  cemetery  at  the  pyramid:  " Great-is-Khaf re "] ; 
he  shall  go  forth  with  his  meat. 

Land  given  hy  King 

7.  As  for  this  field,  which  the  king  gave  to  me,  to  honor  me 
...  for  making  mortuary  offerings  to  me  therewith  in  the 
cemetery. 

Alienation  of  Endowment 

8.  As  for  whatsoever  shall  be  paid  out,  of  that  which  I  gave  to 
them,  [I  will  enter  into  judgment  with  them  in  the  place]  wherein 
judgment  is  had.  The  portion  which  remains  afterward,  shall 
belong,  by  tenths,  to  these  (priestly)  orders  to  [whom]  I  have 
conveyed  this  .  .  .  [the  portion]  which  remains,  for  making 
mortuary  offerings  to  me  therewith,  in  the  cemetery  in  my  eternal 
tomb,  which  is  at  [the  pyramid:   "Great]4s-Khafre." 

Towns  of  the  Endowment 

9.  As  for  the  towns  of  the  (mortuary)  endowment,  which  the 
king  gave  to  me,  to  honor  me,  which  are  maintained  for  my 
mortuary  offerings,  according  to  the  list  .  .  .  forever,  where- 
with mortuary  offerings  are  made  to  me,  in  my  eternal  tomb 
which  is  in  the  cemetery  at  the  pyramid:  "Great-is-Khafre." 
.   .   .   [lands,  people],  and  everything  which  I  conveyed  to  them. 

As  for  the  towns  of  the  (mortuary)  endowment  of  the  purifica- 
tion, wherewith  purification  is  made  .   .   .   .^ 

NO.  2.    THE   CONTRACTS  OF  HEPZEFI  2 

Engraved  upon  the  east  wall  of  the  great  hall  in  Hepzefi's  cliff-tomb  at 
Assiut.  The  only  complete  copy  is  that  published  by  Mr.  Griffith  (F.  L. 
Griffith,  "The  Inscriptions  of  Siut  and  D^r  Rifeh,  London,  1889),  which 
is  a  model  of  care  and  accuracy.  It  is  unnecessary  to  refer  to  the  earlier 
publications,  as  Mr.  Griffith  has  collated  them  all.  The  first  adequate 
treatment  was  that  of  Erman,  written,  unfortunately,  before  the  appear- 
ance of  Mr.  Griffith's  text  (" Zeitschrif t  fiir  agyptische  Sprache,"  1882, 

^  At  least  three  lines  are  lost  at  the  end. 

2  [Reprinted,  by  permission,  from  "Ancient  Records  of  Egypt,"  Vol.  I, 
p.  258  seq.,  by  James  H.  Breasted,  University  of  Chicago  Press,  1906. 
These  contracts  are  of  the  twelfth  dynasty,  Sesostris  I,  1980-1935,  B.C.] 


668  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

159-84),  which  fact  necessitated  leaving  some  obscure  passages  unren- 
dered.  Cf.  also  Maspero,  "Etudes  de  mythologie  et  d'archeologie,"  I, 
62-74.  Legal  documents  from  civil,  as  distinguished  from  criminal, 
processes  of  early  Egypt  are  .  .  .  rare 

The  ten  contracts  were  made  solely  to  secure  to  Hepzefi,  after  his  death, 
certain  ceremonies  and  offerings  from  the  priesthoods  of  Siut.  Similar 
contracts  were  customarily  made  with  the  priests  of  Abydos.  Mentu- 
hotep  and  Sehetepibre,  nobles  of  the  same  time,  say  on  their  Abydos  tomb- 
stones :  "/  gave  contracts  for  the  remuneration  of  the  prophets  of  Abydos.'' 
The  kings  did  the  same. 

The  form  of  the  contracts  is  sufficiently  clear;  but  the  language  is 
very  involved,  and  burdened  with  an  excess  of  relative  clauses.  Space 
will  not  permit  the  full  commentary  which  they  need  in  many  places. 
The  general  reader  should  refer  to  Erman,  "Life  in  Ancient  Egypt," 
145-47,  497,  498.  But  attention  should  at  least  be  called  to  the  sixth 
contract  which  Hepzefi  as  count  made  with  himself  as  superior  prophet 
of  Upwawet. 

Two  facts  in  the  socio-political  organization  of  the  time  are  brought 
out  by  these  contracts :  (1)  The  property  of  the  prince  was  held  under 
two  different  titles,  viz.,  (a)  by  inheritance  from  his  father,  the  property 
being  called  the  "paternal  estate,"  which  he  could  bequeath  at  will;  and 
(6)  by  virtue  of  his  appointment  as  ''count"  by  the  king,  the  property 
being  called  the  ''count's  estate,"  which  he  could  not  legally  bequeath. 
The  distinction  between  these  two  estates  is  clearly  maintained  through- 
out, and  whenever  Hepzefi  bequeathes  anything  from  his  "count's  estate" 
he  concedes  that  such  a  title  can  endure  only  so  long  as  his  successors  are 
willing  to  recognize  it,  and  by  appeal  to  the  common  feeling  in  such  mat- 
ters, he  urges  his  successors  to  recognize  it.  (2)  There  are  in  the  contracts 
four  classes  of  society:  the  "count,"  or  nomarch ;  the  official;  the  "citi- 
zen" (lit.,  "the  small"),  and  the  "peasant,"  lit.,  "belonging  to  the  field,'* 
enumerated  in  descending  scale.  The  interrelations  of  the  four  are  not 
wholly  discernible.  The  "citizen,"  like  the  count,  gives  to  the  temple 
from  fields  called  "his  field,"  which  he  therefore  either  owned  or  held  in 
rental.  The  peasant  is  called  "his  (the  citizen's)  peasant,"  and  may 
therefore  have  been  his  serf  or  slave.  He  cultivated  the  field  for  the 
citizen,  and  carried  the  harvest  offering  to  the  temple  for  him.  The  "offi- 
cial" may  have  been  of  the  same  social  class  as  the  "citizen." 

The  importance  of  these  contracts  in  a  study  of  the  mortuary  customs 
and  beliefs  is  evident,  but  a  discussion  of  these  questions  does  not  fall 
within  the  scope  of  the  present  translations 


I.    First  Contract 
Title 

1.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made,  with  the  lay  priests  of  the  temple  of  Upwawet, 
lord  of  Siut,  to-wit : 

What  Hepzefi  Receives 

2.  There  shall  be  given  to  him :  A  white  loaf  per  individual 
priest,  for  his  statue,  which  is  in  the  temple  of  Anubis,  lord  of 
Rekreret  on  the  first  of  the  5  intercalary  days,  when  Upwawet, 
lord  of  Siut,  proceeds  to  this  temple. 


Chap.  XXIV,  §  1,  2.1  CONTRACTS  OF  HEPZEFI  669 

What  He  Pays 

3.  He  hath  given  to  them  for  it  his  share  in  the  bull  offered  to 
Upwawet,  lord  of  Siut,  in  this  temple,  when  he  proceeds  to  it, 
consisting  of  his  quarter,  due  to  the  count. 

Source  of  Payment 

4.  Lo,  he  spake  to  them,  saying :  '^  Behold  ye,  I  have  given  to 
you  this  quarter  due  to  me  from  this  temple,  in  order  that  this 
white  bread  may  be  endowed,  which  ye  give  to  me.''  Lo,  they  had 
given  to  him  the  inherited  portion  of  the  bull,  for  his  statue,  (which 
is)  in  charge  of  his  mortuary  priest,  before  he  gave  to  them  of  this 
quarter. 

Conclusion 

5.  Lo,  they  were  satisfied  with  it. 

11.  Second  Contract 
Title 

6.  Contract,  which  the  count,  the  superior  prophet,  Hep^efi, 
triumphant,  made  with  the  lay  priests  of  the  temple  of  Upwawet, 
lord  of  Siut,  to-wit : 

What  Hepzefi  Receives 

7.  There  shall  be  given  to  him : 

(a)  White  bread  by  each  one  among  them,  for  his  statue,  (which 
is)  in  charge  of  his  mortuary  priest,  in  the  first  month  of  the  first 
season  on  the  first  day,  New  Year's  Day,  when  the  house  makes 
gifts  to  its  lord,  when  the  fire  is  kindled  in  the  temple. 

(6)  And  they  shall  go  forth  following  his  mortuary  priest,  at  his 
glorification,  until  they  reach  the  northern  corner  of  the  temple, 
as  they  do,  when  they  glorify  their  own  noble  ones,  [the  dead]  on 
the  day  of  kindling  the  fire. 

What  He  Pays 

8.  He  hath  given  to  them  for  it  a  heket  of  grain  from  every 
field  of  the  estate,  from  the  first  of  the  harvest  of  the  count's 
estate ;  as  every  citizen  of  Siut  does,  from  the  first  of  his  harvest. 
Now,  behold,  he  begins  with  having  his  every  peasant  give  it 
into  this  temple,  from  the  first  of  his  field. 


670 


ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 


Injunction  to  Future  Nomarchs 

9.  Lo,  he  said  :  "  Behold,  ye  know  that,  as  for  anything  which 
any  official  or  any  citizen  gives  into  the  temple,  from  the  first  of 
his  harvest,  it  is  not  agreeable  to  him,  that  there  should  be  lack 
therein.  Therefore  shall  no  future  count  diminish  to  future 
priests,  that  which  is  secured  by  contract  of  another  count.  This 
grain  shall  belong  to  the  lay  priests,  each  by  himself;  no  priest, 
who  shall  give  to  me  this  white  bread,  shall  divide  (it)  to  his  col- 
leagues ;  because  they  give  this  white  bread,  each  by  himself." 

Conclusion 

10.  Lo,  they  were  satisfied  with  it. 

III.  Third  Contract 
Title 

11.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made,  with  the  official  body  of  the  temple,  to-wit : 

What  Hepzefi  Receives 

12.  There  shall  be  given  to  him  bread  and  beer  in  the  first 
month  of  the  first  season,  on  the  eighteenth  day,  the  day  of  the 
Wag-feast.     List  to  that  which  shall  be  given : 


Register  of  Names 


Superior  prophet 

Announcer 

Master  of  secret  things 

Keeper  of  the  wardrobe 

Overseer  of  the  storehouse.  , .  . 

Keeper  of  the  wide  hall 

Overseer  of  the  house  of  the  ka 

Scribe  of  the  temple 

Scribe  of  the  altar 

Ritual  priest 


Jars  of 

Flat 

Beer 

Loaves 

4 

400 

2 

200 

2 

200 

2 

200 

2 

200 

2 

200 

2 

200 

2 

200 

2 

200 

2 

200 

White 
Loaves 


10 
5 
5 
5 
5 
5 
5 
5 
5 
5 


What  He  Pays 

13.   He  hath  given  to  them  for  it,  22  temple-days,  from  his 
property  of  his  paternal  estate,  but  not  from  the  property  of  the 


Chap.  XXIV,  §1,2.]  CONTRACTS   OF  HEl>ZEFI  671 

count's  estate :    4  days  to  the  superior  prophet,  and  2  days  to 
each  one  among  them. 

Definition  of  "Temple-Day'' 

14.  Lo,  he  hath  said  to  them  :  "Behold,  as  for  a  temple-day,  it 
is  1/360  of  a  year.  When  ye  therefore  divide  everything  that 
comes  into  this  temple,  consisting  of  bread,  of  beer,  and  of  meat 
for  each  day,  that  which  makes  1/360  of  the  bread,  of  the  beer, 
and  of  everything,  which  comes  into  this  temple,  is  the  unit  in 
these  temple-days  which  I  have  given  to  you.  Behold,  it  is  my 
property  of  my  paternal  estate,  but  it  is  not  the  property  of  the 
count's  estate;  for  I  am  a  priest's  son,  like  each  one  of  you. 
Behold,  these  days  shall  belong  to  every  future  official  staff  of 
the  temple,  since  they  deliver  to  me  this  bread  and  beer,  which 
they  give  to  me." 

Conclusion 

15.  Lo,  they  were  satisfied  with  it. 


IV.  Fourth  Contract 
Title 

16.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made  with  the  lay  priests  of  Upwawet,  lord  of  Siut, 
to  wit : 

What  Hepzefi  Receives 

17.  There  shall  be  given  to  him : 

(a)  A  white  loaf  per  each  individual  among  them,  for  his  statue, 
which  is  in  the  temple,  in  the  first  month  of  the  first  season,  on 
the  eighteenth  day,  the  day  of  the  Wag-feast. 

(b)  And  they  shall  go  forth,  following  his  mortuary  priest,  at  his 
glorification,  when  the  fire  is  kindled  for  him,  as  they  do  when 
they  glorify  their  own  noble  ones,  on  the  day  of  kindling  the  fire 
in  the  temple.  Now,  this  white  bread  shall  be  under  the  charge 
of  my  mortuary  priest. 

What  He  Pays 

18.  He  hath  given  to  them  for  it : 

(a)  A  khar  [measure  of  bulk]  of  fuel  for  every  bull,  and  an 
uhet  [measure  of  bulk]  of  fuel  for  every  goat,  which  they  give 


672  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

into  the  storehouse  of  the  count,  when  each  bull  and  each  goat 
is  offered  to  the  temple,  as  ancient  (dues)  which  they  give  into 
the  storehouse  of  the  count.  Lo,  he  hath  remitted  it  to  them, 
not  collecting  it  from  them. 

(6)  And  hath  given  to  them  22  jars  of  beer  and  2200  flat  loaves 
which  the  official  body  of  the  temple  give  to  him  in  the  first 
month  of  the  first  season,  on  the  eighteenth  day,  as  compensation, 
for  their  giving  white  bread  per  each  individual  among  them, 
from  that  which  is  due  to  them  from  the  temple,  and  (as  com- 
pensation for)  his  glorification. 

Further  Specification 

19.  Lo,  he  spake  to  them,  saying:  "If  this  fuel  be  reckoned 
against  you  by  a  future  count ;  behold,  this  bread  and  beer  shall 
not  be  diminished,  which  the  official  body  of  the  temple  deliver 
to  me,  which  I  have  given  to  you.  Behold,  I  have  secured  it  by 
contract  from  them." 

Conclusion 

20.  Lo,  they  were  satisfied  with  it. 

V.  Fifth  Contract 

Title 

2L  Contract,  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made  with  the  [keeper  of  the  wardrobe]  of  the  temple, 
concerning : 

What  Hepzefi  Receives 

22.  Three  [wicks]  with  which  the  fire  is  kindled  for  the  god. 

What  He  Pays 

23.  While  he  (the  count)  has  given  to  him  (the  keeper)  for  it : 
3  temple-days.  Now,  these  3  temple-days  shall  be  due  to  every 
future  [keeper  of  the  wardrobe],  because  these  3  [wicks]  are  due 
to  him  (the  count). 

Disposition  of  Wicks 

24.  1.  Lo,  he  spake  to  him  saying:  "One  of  them  shall  be 
given  to  my  mortuary  priest,  when  he  goes  forth,  kindling  the 


Chap.  XXIV,  §1,2.]  CONTRACTS   OF  HEPZEFI  673 

fire  with  it  for  the  god,  on  the  fifth  of  the  5  intercalary  days,  New 
Year's  night,  by  the  [keeper  of  the  wardrobe].  He  shall  [deliver] 
it  to  my  mortuary  priest  after  he  does  that  which  he  does  with 
it  in  the  temple." 

25.  2.  "He  shall  give  another  on  New  Year's  Day,  in  the  morn- 
ing, when  the  house  makes  gifts  to  its  lord,  when  the  lay  priests 
of  the  temple  give  to  me  this  white  bread,  which  they  give  to  me 
per  individual  priest,  on  New  Year's  Day.  It  shall  be  due  from 
my  mortuary  priest  at  my  glorification." 

26.  3.  "He  shall  give  another  in  the  first  month  of  the  first 
season  on  the  eighteenth  day,  the  day  of  the  Wag-feast,  at  the 
same  time  with  the  white  bread,  which  they  give  to  me  per  indi- 
vidual priest.  This  [wick]  shall  be  due  from  my  mortuary  priest 
when  glorifying  me,  together  with  the  lay  priests." 

Lo,  he  said  to  him : 

Definition  of  "Temple-Day'* 

27.  "Behold,  as  for  a  temple-day,  it  is  1/360  of  a  year.  When 
ye  therefore  divide  everything  that  comes  into  the  temple,  consist- 
ing of  bread,  beer,  and  everything  for  each  day,  that  which  makes 
1/360  of  the  bread,  of  the  beer,  and  of  everything  which  comes 
into  this  temple,  is  the  unit  in  these  temple-days  which  I  have 
given  to  thee.  Behold,  it  is  my  property,  of  my  paternal  estate, 
but  fiot  of  the  count's  estate." 

Future  Validity  of  Agreement 

28.  "  Now,  these  3  temple-days  shall  belong  to  every  future 
[keeper  of  the  wardrobe,]  because  these  3  [wicks]  are  due  to  him, 
which  thou  hast  given  to  me  for  these  3  temple-days,  which  I  have 
given  to  thee." 

Conclusion 

29.  Lo,  he  was  satisfied  with  it. 

VI.  Sixth  Contract 
Title 

30.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made  with  the  superior  prophet  of  Upwawet,  con- 
cerning : 


674  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

What  Hepzefi  Receives 

31.  The  roast  of  meat  which  is  due  upon  the  altar,  which  is 
placed  upon  the  oblation-table,  for  every  bull  which  is  slaughtered 
in  the  temple. 

And  one  jar  for  (every)  jar  of  beer  every  day  of  a  procession ; 
which  shall  be  due  to  every  future  superior  prophet. 

What  He  Pays 

32.  He  (the  count)  hath  given  him  (the  superior  prophet)  for 
it,  2  temple-days  from  his  property,  of  his  paternal  estate,  but  not 
from  the  property  of  the  count's  estate. 

Disposition  of  Meat 

33.  Lo,  the  count  Hepzefi  spake,  saying :  "When  this  roast  of 
meat  and  this  jar  of  beer  come  for  every  day  of  a  procession,  they 
are  due  to  my  statue,  (which  is)  in  charge  of  my  mortuary  priest." 

Conclusion 

Lo,  he  was  satisfied  therewith,  in  the  presence  of  the  official 
body  of  the  temple. 

VII.  Seventh  Contract 
Title 

34.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made,  with  the  great  priest  of  Anubis,  concerning : 

What  Hepzefi  Receives 

35.  Three  [wicks]  due  to  him,  with  which  the  fire  is  kindled  in 
the  temple  of  Anubis  : 

One  on  the  fifth  of  the  5  intercalary  days,  the  New  Year's 
night. 

Another  on  New  Year's  Day. 

Another  in  the  first  month  of  the  first  season,  on  the  seventeenth 
day,  the  night  of  the  Wag-feast. 

What  He  Pays 

36.  He  hath  given  to  him  for  it :  1,000  measures  of  land  in 
[ ]  from  the  fields  of  his  father,  as  compensation  for  these  3 


Chap.  XXIV,  §1,2.]  CONTRACTS  OF  HEPZEFI  675 

[wicks],  which  he  gives  to  my  mortuary  priest,  in  order  to  kindle 
the  Hght  for  me  therewith. 

Conclusion 

37.  Lo,  he  was  satisfied  therewith. 

VIII.  Eighth  Contract 

Title 

38.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made,  with  the  lay  priests  of  the  temple  of  Anubis ; 
to- wit : 

What  Hepzefi  Receives 

39.  There  shall  be  given  to  him  : 

(a)  A  white  loaf  per  each  individual  among  them,  for  his 
statue,  in  the  first  month  of  the  first  season,  on  the  seventeenth 
day,  the  night  of  the  Wag-feast. 

(6)  And  that  they  shall  go  forth,  following  his  mortuary  priest, 
and  kindle  for  him  (the  count),  the  fire  at  his  glorification,  until 
they  reach  the  lower  steps  of  his  tomb,  just  as  they  glorify  their 
noble  ones,  on  the  day  of  kindling  the  fire. 

(c)  And  that  the  priest  belonging  in  each  month  shall  give  [ — ] 
of  bread  and  a  jar  of  beer  for  his  statue,  which  is  on  the  lower  steps 
of  his  tomb,  when  he  comes  forth  from  offering  in  the  temple  every 
day. 

What  He  Pays 

40.  He  hath  given  to  them  for  it :  grain  from  the  first  of  the 
harvest  of  every  field  of  the  count's  estate,  as  every  citizen  of  Siut 
does  from  the  first  of  his  harvest.  Now,  behold,  he  begins  with 
having  his  every  peasant  give  it  from  the  first  of  his  field  into  the 
temple  of  Anubis. 

Injunction  to  Future  Nomarchs 

41.  Lo,  the  count,  Hepzefi,  said  :  "  Behold,  ye  know,  that,  as  for 
every  official  and  every  citizen,  who  gives  the  first  of  his  harvest 
into  the  temple,  it  is  not  agreeable  to  him,  that  there  should  be 
lack  therein.  Therefore  shall  no  future  count  diminish  to  future 
priests  that  which  is  secured  by  contract  of  another  count." 


676  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

Individual  Payment  and  Remuneration 

42.  This  grain  shall  belong  to  the  lay  priests,  per  each  individual 
priest,  who  shall  give  to  me  this  white  bread.  He  shall  not  divide  it 
to  his  colleagues,  because  they  give  this  white  bread,  each  by  him- 
self. 

Conclusion 

43.  Lo,  they  were  satisfied  therewith. 

IX.  Ninth  Contract 
Title 

44.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
triumphant,  made,  with  the  overseer  of  the  necropolis,  and  with 
the  mountaineers,  to-wit : 

What  Hepzefi  Receives 

45.  There  shall  be  given  : 

(a)  That  they  go  to  the  house  of  Anubis,  on  the  fifth  of  the  5 
intercalary  days,  (being)  New  Year's  night,  and  on  New  Year's 
Day,  to  receive  2  [wicks],  which  the  great  priest  of  Anubis  gives 
to  the  count,  Hepzefi. 

(b)  And  that  they  go,  at  his  glorification,  until  they  reach  his 
tomb. 

(c)  And  that  they  give  this  one  [wick]  to  his  mortuary  priest, 
after  they  glorify  him,  just  as  they  glorify  their  noble  ones. 

What  He  Pays 

46.  He  hath  given  to  them  for  it : 

(a)  2,200  measures  of  land  in  the  [ — ],  from  his  property  of 
the  paternal  estate,  but  not  of  the  count's  estate  : 

Register  of  Names  Measures 

Overseer  of  the  Necropolis  400 

Chief  of  the  Highland  200 

Eight  mountaineers  1,600 

(6)  Besides  giving  to  them  the  foot  of  the  leg  of  every  bull, 
that  shall  be  slaughtered  upon  this  highland,  in  every  temple. 


Chap.  XXIV,  §  1,  2.]  CONTRACTS   OF  HEPZEFI  677 

What  Hepzefi  Further  Receives 

47.  They  have  given  to  him  : 

The  Overseer  of  the  Necropolis,  2  jars  of  beer ;  100  flat  loaves ; 
10  white  loaves. 

The  Chief  of  the  Highland,  1  jar  of  beer;  50  flat  loaves;  5 
white  loaves. 

Eight  mountaineers,  8  jars  of  beer;  400  flat  loaves;  40  white 
loaves. 

For  his  statue,  (which  is)  in  charge  of  his  mortuary  priest,  in 
the  first  month  of  the  first  season,  on  the  first  day,  (being)  New 
Year's  Day,  when  they  glorify  him. 

Future  Validity  of  Contract 

48.  Lo,  he  said  to  them :  "  Behold,  these  measures  of  land,  which 
I  have  given  to  [you],  shall  belong  to  every  overseer  of  the  necrop- 
olis, to  every  chief  of  the  highland,  and  to  every  mountaineer 
who  shall  come  (hereafter),  because  they  shall  deliver  to  me  this 
bread  and  beer." 

Additional  Stipulation 

49.  "And  ye  shall  be  behind  [my]  statue  which  is  in  my  garden, 

following  it   when ,  at    every  feast  of   the  beginning  of    a 

season,  which  is  celebrated  in  this  temple." 

Conclusion 

50.  Lo,  they  were  satisfied  therewith. 

X.  Tenth  Contract 
Title 

51.  Contract  which  the  count,  the  superior  prophet,  Hepzefi, 
made,  with  the  overseer  of  the  highland,  to-wit : 

What  Hepzefi  Receives 

52.  There  shall  be  given  to  him  1  jar  of  beer,  1  large  loaf, 
500  flat  loaves,  and  10  white  loaves,  for  his  statue,  (which  is) 
in  charge  of  his  mortuary  priest,  in  the  first  month  of  the  first 
season,  on  the  seventeenth  day,  the  night  of  the  Wag-feast. 


678  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

What  He  Pays 

53.  He  hath  given  to  him  for  it : 

(a)  1,000  measures  of  land  in  [ ]  from  his  property  of  his 

paternal  estate,  but  not  from  the  property  of  the  count's  estate. 

(6)  And  a  quarter  of  every  bull  that  is  slaughtered  on  this 
highland  in  every  temple. 

Future  Validity  of  Contract 

54.  Lo,  he  said  to  the  overseer  of  the  highland :  "  Behold, 
these  measures  of  land  shall  belong  to  every  future  overseer  of 
the  highland,  because  he  delivers  to  me  this  bread  and  beer." 

Conclusion 

55.  Lo,  he  was  satisfied  therewith. 

NO.  3.  CONTRACT  OF  MARRIAGE  i 

The  demotic  contract  of  which  I  here  publish  a  translation  bears  the 
number  2433  of  the  Egyptian  collection  in  the  Louvre.  It  is  not  unique 
of  its  kind ;  for  there  are  like  ones  in  the  British  Museum,  the  Museum  of 
Turin,  and  amongst  the  demotic  contracts  of  Berlin  and  Ley  den.  M. 
Brugsch  also  has  given  at  the  end  of  his  "  Grammaire  demotique  "  the  fac- 
simile of  a  marriage  contract  of  the  same  sort,  which  he  thought  was  a  deed 
of  sale.  It  may,  therefore,  be  said  that  the  decipherment  of  this  kind  of 
documents  is  a  new  fact  in  science.  It  must  be  remarked  that  the  text 
chosen  is  part  of  a  collection  of  documents  relating  to  a  single  family,  the 
great  portion  of  the  deeds  being  in  the  Louvre  and  some  in  the  British 
Museum.  Thus  it  is  known  that  by  virtue  of  the  present  marriage 
settlement,  and  of  the  mortgage  there  expressly  specified,  that  Ta-outem 
three  years  afterward,  in  the  year  36  of  Philadelphus,  acknowledged  by 
letter  a  debt  of  15  shekels  repayable  in  the  33rd  year,  that  is  to  say  36 
months,  and  that  these  15  shekels  had  then  produced  28  (Papyrus  No. 
2443  of  the  Louvre).  At  this  date,  if  he  had  not  paid,  the  property  of 
the  husband  would  have  belonged  to  the  wife.  Philadelphus  died  before 
having  reached  the  33rd  year  of  his  reign ;  but  the  Papyrus  No.  2438,  dated 
in  the  2d  year  of  Euergetes,  contains  in  effect  the  final  surrender  of  his 
property,  which  Pchelchons  made  to  his  wife  Ta-outem.  This  property 
came  to  Pchelchons  originally  by  inheritance  from  his  father,  who  had 
apparently  assigned  to  his  own  wife  in  the  Papyrus  No.  2428  of  the  Louvre. 
He,  according  to  Papyrus  2424  of  the  same  collection  and  Hay  No.  2  of 
the  British  Museum,  had  divided  them  between  Patem  and  Pana  their 
sons.  Patem,  in  Papyrus  No.  2424,  makes  a  reference  to  the  marriage 
settlement  here  published,  when  he  speaks  of  the  gift  which  his  mother 
had  made  him  of  the  property  which  belonged  to  Pchelchons  his  father. 

The.  Papyrus  itself  has  been  published  in  the  "Transactions  of  the 
Society  of  Biblical  Archaeology,"  Vol.  VI,  p.  284,  with  a  translation  in 
French  by  the  Author. 

1  [Translated  by  E.  Revillout.  Reprinted,  by  permission,  from  "Rec- 
ords of  the  Past"  (Vol.  'X,  p.  75  seg.},  published  by  Samuel  Bagster  and 
Sons,  London.  From  the  reign  of  Ptolemy  Philadelphus  (Thirty-first 
dynasty),  b.  309,  d.  247  b.c] 


Chap.  XXIV,  §1,3.]  CONTRACT  OF  MARRIAGE  679 

The  year  33  ^otax  of  the  King  Ptolemy,  the  god,  being  Aetus, 
son  of  Apollonius,  Priest  of  Alexander  and  of  the  gods  brothers, 
being  Demetrl\,  daughter  of  Dionysios,  Canephoros  before 
Arsinoe  Philadelphia,  the  Pastophore  of  Ammon  Api  of  the 
Western  region  of  Thebes.  Path  a  son  of  Pchelchons,  whose 
mother  is  Tahet,  says  to  the  woman  Ta-outem,  daughter  of 
Relou,  whose  mother  is  Tanetem  :  I  have  accepted  thee  for 
wife,  I  have  given  thee  one  argenteus,^  in  shekels  5,  one  argenteus 
in  all  for  thy  woman's  gift.  I  must  give  thee  6  oboli,  their  half  is 
3,  to-day  6,  by  the  month  3,  by  the  double  month  6,  36  for  a  year  : 
equal  to  one  argenteus  and  one  fifth,  in  shekels  6,  one  argenteus 
and  one  fifth  in  all  for  thy  toilet  during  a  year.  Lastly,  a  tenth 
of  an  argenteus,  in  shekels  one  half,  one  argenteus  one  tenth  for 
thy  pin  ^  money  by  the  month,  w  hich  makes  one  argenteus  and  one 
fifth,  in  shekels  6,  one  argenteus  and  one  fifth  for  thy  pin  ^  money 
for  the  year.  Thy  pin  ^  money  for  one  year  is  apart  from  thy 
toilet  nioney.  I  must  give  it  to  thee  each  year,  and  it  is  thy  right 
to  exact  the  payment  of  thy  toilet  money,  and  thy  pin  ^  money, 
which  are  to  be  placed  to  my  account.  I  must  give  it  to  thee. 
Thy  eldest  son,  my  eldest  son,  shall  be  the  heir  of  all  my  prop- 
erty, present  and  future.      I  will  establish  thee  as  wife. 

In  case  I  should  despise  thee,  in  case  I  should  take  another  wife 
than  thee,  I  will  give  thee  20  argenteus,  in  shekels  100,  20  argenteus 
in  all.  The  entire  of  the  property  which  is  mine,  and  which  I 
shall  possess,  is  security^  of  all  the  above  words,  until  I  have 
accomplished  them  according  to  their  tenor.  I  have  no  more  to 
allege,  any  other  matter,  any  other  word  .  .  .^  with  thee.  The 
writings  which  the  woman  Tahet,  daughter  of  Teos,  my  mother, 
has  made  to  me  concerning  one  half  of  the  entire  of  the  property 
which  belonged  to  Pchelchons,  son  of  Pana,  my  father,^  and  the 
rest  of  the  contracts  coming  from  her,  and  which  are  in  my  hand, 
belong  to  thee,  as  well  as  the  rights  resulting  from  it.  For  thee 
all  that,  as  well  as  that  which  I  shall  justify  in  their  name.  Son, 
daughter,^  coming  from  me,  who  shall  annoy  thee  on  this  sub- 
ject will  give  thee  20  argenteus,  in  shekels  100,  20  argenteus  in 

^  There  is  scarcely  necessity  to  observe  that  the  context  sufficiently 
proves  that  an  argenteus  was  worth  5  shekels,  and  that  a  shekel  was  worth 
6  oboli. 

2  Or,  "pocket  money." 

3  This  specification  of  the  mortgage  is  very  remarkable. 

^  Lacunae.  ^  See  the  preface  for  this  point. 

^  Patma  had  in  reality  a  daughter  by  another  marriage,  who  in  Papyrus 
No.  2438,  expressly  agrees  to  the  settlement  of  all  the  patrimony  made 
by  Patma  to  his  new  wife. 


680  ANCIENT  AND  PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

all.     He  will  deliver  them  up  to  thee  entirely  without  any  oppo- 
sition, the  writer  of  this  act  is  .  .   .  the  Priest  of  Ammon  Horp- 

NETER,    son  of  SmIN. 

Section  2.     BABYLONIAN   AND   ASSYRIAN 

NO.   1.  EARLY  BABYLONIAN  LEGAL  DOCUMENTS^ 

Translations  of  Selected  Texts 

1.    Purchase  of  a  Slave 

One  slave,  by^  the  name  of  Ina-gdtiShamash,  the  servant  of 
(the?)  GAL-SHAG'GA,  Adajtaum  son  of  Abu-w{j)aqar  has  bought 
from  his  master  (the?)  GAL-SHAG-GA.  He  has  paid  the 
money  according  to  his  full  prize.  The  hukanu  has  been  trans- 
ferred. For  all  future  time  they  shall  not  complain  against  one 
another.  The  spirit(?)  of  the  god  Marduk  and  (the  king)  Sin- 
muhalit,  the  spirit(?)  of  Bel-tdhi  and  his  consort(?)  they  have 
invoked. 

Follow  the  names  of  five  witnesses. 

2.    Purchase  of  a  Special  Kind  of  House 

li  SAR  of  E-RU-A,  not  rugguhu,  situated  in  Sippar-jahrurum, 
which  on  the  former  tablet  had  been  designated  as  E-KI-GAL,  on 
one  side  adjoining  the  house  of  Hungulum  son  oi  Nahium-ekalli, 
which  he  had  bought  from  the  sons  of  the  hdru  priest  Rammdn- 
idinnam,  on  the  other  side  adjoining  the  street  —  its  front  being 
toward  the  place  of  the  Isinites,  its  rear  toward  the  house  of  the 
scribe  Warad-Ihari  son  of  Warad-Mamu  —  which  in  the  year 
"when  King  Ammi-ditana  .  .  .  the  protecting  deities"  Hun- 
gulum  son  of  Nabium-ekalli  had  bought  from  Ili-iqisham  son 
of  Ali-lumur  for  6|  sheqels,  including  the  SI-BI,  —  (this  house) 
the  Shamash  priestess  Iltdni  daughter  of  Ibi-NIN-SHAH  has 
bought  with  her  money  from  Hungulum  son  of  Nabium-ekalli. 
She  has  paid  seventeen  sheqels  of  silver,  as  its  full  prize,  and  one- 
half  of  a  sheqels  he  has  made  as  a  SI-BI.  Her  deed  is  closed. 
She  is  satisfied.     For  all  future  days  they  shall  not  complain  against 

^  [Reprinted,  by  permission  of  the  University  of  Pennsylvania,  Depart- 
ment of  Archeology,  from  "  Babylonian  Legal  and  Business  Documents 
(from  the  time  of  the  First  Dj^nasty  of  Babylon,  chiefly  from  Sippar)," 
by  Herman  Ranke  —  The  Babylonian  Expedition  of  the  University  of 
Pennsylvania  (Series  A,  Cuneiform  Texts,  edited  by  H.  V.  Hilpricht), 
Vol.  vi,  part  1,  published  at  Philadelphia,  1906.] 


Chap.  XXIV,  §2,  1.]         EARLY   BABYLONIAN   DOCUMENTS  681 

one  another.     The  spirit(?)  of  Shamash,  Aja,  Marduk,  and  of  the 
king  Ammi-zaduga  they  have  invoked. 

Follow  the  names  of  ten  witnesses  and  the  scribe. 

Annotations:  Li.  i.  E-RU-A  seems  to  designate  a  special  kind  of 
house  (Meissner,  A.  P.  R.,  p.  104).  It  has  not  yet  been  found  written 
phonetically  in  early  Babylonian  texts.  The  meaning  of  a  house,which  is 
"not  ruggubu,''  is  not  yet  clear.  Li.  17.  The  Semitic  reading  of  SI-BI 
is  not  yet  certain.  For  its  meaning,  cf.  Meissner,  Z.c,  p.  96,  [The  lines 
(Li.)  refer  to  the  transliteration  shown  in  the  original  text  and  omitted  here.] 


3.    4  Man  buys  back  his  Father's  House,  which  had  been  sold  to  a 

Stranger 

One-half  SAR  of  house  at  Gagim,  adjoining  the  house  of  the 
Shamash  priestess  Halijatum,  daughter  of  Manum-  .  .  .  and  ad- 
joining also  the  house  of  Ribam-ili,  [son  of  Bur]-Sin,  which.  Shamash- 
bdni  son  of  Ilushu-ibishu  had  bought  from  Sin-idinnam  son  of 
Bur-Sin  —  Ribam-ili  the  son  of  Bur-Sin  has  ransomed  it,  his 
father's  house,  from  Shamash-bdni  son  of  Ilushu-ibishu.  One  mine 
of  silver  he  has  paid.  The  matter  is  finished,  he  is  satisfied. 
For  all  future  time  they  shall  not  complain  against  one 
another.  The  spirit  (?)  of  the  gods  Shamash,  Aja  and  Marduk, 
and  of  Hammu-rabi  they  have  invoked.  . 

Follow  the  names  of  eight  witnesses  and  the  scribe.  / 

4.    Hiring  of  a  Servant 

Maruni(^)  son  of  Etel-bi-Rammdn  has  hired  Warad-Rammdn 
the  son  of  Warad-kubi  from  (his  father  )  Warad-kubi,  from  the  first 
day  of  the  month  Elulu  unto  (next)  new  year.  Four  sheqels 
of  silver  he  has  paid  as  monthly  rent.  If  he  .  .  .  ,  he  shall  lose 
his  rent. 

Follow  the  names  of  two  witnesses. 

5.    A  Man  rents  a  Field 

One  and  one-third  GAN  of  field,  "good"  land,  the  field  of  the 
Shamash  priestess  Mellatum  daughter  of  Ibkusha  —  the  scribe 
Marduk-mubalit  has  rented  from  the  Shamash  priestess  Mella- 
tum, the  owner  of  the  field,  in  order  to  cultivate  it,  at  the  rate  of 
six  GUR  of  grain  on  one  GAN.  At  harvest  time  he  shall  pay  six 
GUR  of  grain  at  the  gate  of  Gagum.  One  sheqel  of  silver  she  has 
received  out  of  the  rent  of  her  field. 


682  ANCIENT  AND   PRIMITIVE  LEGAL  TRANSACTIONS       [Part  IV. 

6.    Six  Men  rent  a  Piece  of  Land,  to  raise  Grain  on  it.     At  Har- 
vest Time  Each  Partner  shall  receive  One-Sixth  of  the  Proceeds 

A  piece  of  land  —  to  its  full  extent  —  district  of  Tuhamu,  in 
the  midst  of  wood!  and  (?)  and  stepland,  Ibi-Bel  the  scribe,  Warad- 
kubi  son  of  Ihni-Sin,  Ea-sharri-ili  son  of  Sizzatum,  Rammdn-lu- 
zirum  son  of  Ibna{  t)tum,  Warad-Iluli  son  of  Ibnatum,  and  Ahuni 
son  of  Warad-kubi  have  rented  in  partnership,  in  order  to  plant 
grain  on  it.  At  harvest  time  they  shall  harvest  the  field,  thrash 
the  grain,  and  sow  anew(?).  One  part  Ibi-Bel  the  scribe  shall 
take,  and  Warad-kubi  son  of  Ibni-Sin,  Ea-sharri-ili,  Rammdn- 
lu-zirum,  Warad-Iluli,  and  Ahuni  son  of  Warad-kubi  (shall  take) 
each  one  part. 

Follow  the  names  of  four  witnesses,  including  the  scribe.  Seal 
impressions  of  Warad-AB-AB  and  Ibni-Marduk  (both  witnesses), 
and  of  Warad-kubi  (one  of  the  partners). 


7.    A  Man  rents  a  Hou^e  for  One  Year 

A  house  belonging  to  the  Shamash  priestess  Ribatum,  NIN- 
SHAH-ndsir  son  of  Nur-alishu  has  rented  for  one  year  from  the 
Shamash  priestess  Ribatum  daughter  of  Ibgatum.  He  shall  pay 
three  sheqels  as  one  year's  rent.  As  first  payment  on  the  rent  of 
one  year  she  has  received  one  sheqel  and  a  half.  On  the  first  of 
the  month  Warahsamna,  in  its  beginning,  he  shall  move  in. 
Three  mm  of  Shamash,  one  SHIR-ti,  10  qa  of  shikaru  he  (the  lessee) 
shall  deliver.  Concerning  the  manahtu  of  the  house,  which  the 
lessee  is  going  to  make  —  if  the  landlord  says  to  the  tenant :  move 
out !  —  he  (the  tenant)  shall  (may  ?)  destroy  his  manahtu.  If  the 
tenant  moves  out  ...  (of  his  own  will?),  he  shall  lose  (vari- 
ant :   not  destroy)  his  manahtu. 

Follow  the  names  of  two  witnesses  and  the  scribe. 


8.    A  Man  borrows  Money  from  the  Temple 

5|  sheqels  of  silver  Idin-Shamash  has  borrowed  from  the  god 
Shamash  {i.e.,  from  the  administration  of  his  temple).  At 
harvest  time  he  shall  pay  back  to  Shamash  the  money  and  its 
interest. 

Follow  the  names  of  two  witnesses. 


Chap.  XXIV,  §2,  1.]      EARLY  BABYLONIAN  DOCUMENTS  683 

9.    A  Man  borrows  Grain  from  a  Priestess 

10  gur  of  grain  Ibiqsha  son  of  Jasi-il  has  borrowed  from  the 
Shamash  priestess  Eli-erizza  daughter  of  Awil-4li,  at  the  rate  of 
1  'pi  4Q  qa  interest  on  one  gur.  At  harvest  time,  in  the  month 
Shadutu,  he  shall  pay  back  the  grain  and  its  interest. 

Follow  the  names  of  two  witnesses. 


10.  A  Shamash  Priestess  gives  her  Son  as  a  Foster  Child  to  a 

Married  Couple 

A  boy  by  the  name  of  Shamash-tukulti  the  son  of  the  Shamash 
priestess  Huzalatum,  his  mother  Huzalatum,  daughter  of  Sumu- 
but  .  .  .  (?),  has  given  as  foster  child  to  Mati-4lu  and  Erishtum. 
Shamash-tukulti  shall  be  the  son  of  Mati-ilu  and  Erishtum.  If 
Shamash-tukulti  says  to  his  father  Mati-ilu :  "  You  are  not  my 
father,"  or  to  his  mother  Erishtum:  "  You  are  not  my  mother," 
then  they  shall  make  him  a  mark(?)  and  sell  him  for  money. 
If,  however,  Mati-ilu  and  Erishtum  say  to  their  son  Shamash- 
tukulti:  "You  are  not  our  (?,  my?)  son,"  they  shall  also  give 
him  dullu(2)  and  he  shall  go  free.  Nobody  has  anything  {i.e., 
any  claim)  against  him.  The  spirit(?)  of  the  gods  Shamash, 
Aaj,  Marduk  and  the  spirit(  ?)  of  (the  king)  Abil-Sin  they  have 
invoked  (against  anyone)  who  shall  change  the  contents  of  this 
tablet. 

Follow  the  names  of  four  male  and  ten  female  witnesses. 

11.  A  Shamash  Priestess  adopts  a  Young  Woman  and  her  Suck- 

ling Child 

Surratum,  together  with  (her)  suckling  daughter,  is  the  daughter 
of  the  Shamash  priestess  Erishti-Aja,  whom  the  Shamash  priestess 
Erishti-Aja,  her  mother,  has  "  purified  "  and  adopted  .  .  .  the 
Shamash  priestess  Erishti-Aja,  daughter  of  Sharrum-Rammdn, 
has  "  cleansed  "  her  and  has  turned  her  face  toward  the  rising 
sun.  As  long  as  her  mother  Erishti-Aja  lives,  she  (the  adopted 
one)  shall  support  her.  If  the  Shamash  priestess  Erishti-Aja, 
her  mother,  is  called  away  by  her  god  (i.e.,  if  she  dies),  she  (i.e., 
Surratum)  shall  be  "  clean."  She  shall  be  independent.  All  her 
desires  she  has  reached.  For  all  future  times  none  of  the  children 
of  the  Shamash  priestess  Erishti-Aja,  daughter  of  Sharrum- 
Rammdn,  and  of  the  children  of  her  brother  Kalumum,  male  and 


684  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

female,  who  ever  there  are  or  will  be,  shall  have  a  claim  against 
Surratum  the  daughter  of  Erishti-Aja  and  her  suckling  daughter. 

12.  Part  of  a  Will.  Statement  of  the  Part  of  the  Paternal  Prop- 
erty {consisting  in  Fields^  Garden,  Houses,  Servants,  etc.)  which 
belongs  to  a  Certain  Man,  after  the  Whole  has  been  divided  be- 
tween him  and  his  Three  Brothers 

10  GA  N  of  stepland,  situated  beside  the  field  of  Warad-Nannar, 
8  GAN{?)  land  beside(?)  Zarikum  and  the  canal,  10  GAN{?) 
of  field,  region(?)  of  Shamash-ndsir  —  altogether  26  GAN  of 
field,  which  Gurrudum  has  cultivated(?),  1  GAN  of  garden  in 
the  field  of  Buta,  situated  beside  the  canal  and  the  daughter  of 
Warad-Ishtar,  7  SAR  of  E-RU-A,  2  SAR  of  "big  house,"  the 
dwelling  place  of  his  father  Sili-Shamash,  3  SAR  E-KI-GAL, 
situated  beside  the  house  of  Mattatum,  one  man  servant  (named) 
Kalumum,  one  man  servant  (named)  Zaphu-liphur,  1  maid  ser- 
vant (named)  Ili-dumgi,  1  maid  servant  (named)  Ali-abusha,  1 
chariot  sha  i-na  ba  lik,  2  K  UM  ( ?)  vessels  —  all  this  is  the  part 
(of  the  parental  property)  of  Il{u)-bi-Shamash,  son  of  Sili-Sha- 
mash, which  he  divided  (i.e.,  got  after  the  division)  with  his 
brothers  Ibi-Shamash,  Ibiq-iltum,  and  Awdt-Shamash.  They  have 
divided,  finished.  Whatever  of  the  property  shall  come  up  (yet), 
they  shall  divide  into  equal  parts.  In  all  times  to  come  they  shall 
not  complain  one  against  the  other.  The  spirit  (?)  of  the  gods 
Shamash,  Marduk,  and  of  the  king  Hammurabi  they  invoked. 

Follow  the  names  of  nine  witnesses  and  the  scribe.  Seal  im- 
pressions of  Sini-dinnam,  Idin-Sin,  and  Shamajatum. 

13.  Record  of  a  Decision  concerning  the  Wall  of  a  House,  against 
which  Complaint  had  been  brought  before  the  Shdbir  of  Sippar 

Against  the  wall  of  Warad-Sin,  Ibku-Sin  son  of  Sharrum- 
Shamash  has  brought  claim  against  Warad-Sin,  and  the  men 
assisted  as  witnesses  (?).  They  inspected  the  wall,  and  the  wall 
measuring  half  sl  GAR  and  two  cubits  USH^  1  cubit  SAG,  3 J 
GIN,  from  the  wall  of  Nur-GIR  unto  the  wall  of  Warad-Sin,  they 
proclaimed  as  the  property  of  Warad-Sin,  before  the  shdbir  of 
Sippar,  Sharrum-kima-ilim.  For  all  future  times  Ibku-Sin  shall 
bring  no  more  complaint  against  Warad-Sin  concerning  this  wall. 
The  spirit(  ?)  of  the  gods  Shamash,  Aja,  Marduk,  and  of  the  king 
Samsu-iluna  they  invoked. 

Follow  the  names  of  six  witnesses. 


Chap.  XXIV,  §2,2.]         LATER   CONTRACT  TABLETS  685 


14.    Memorandum  of  a  Loan  of  Money 

Fourteen  sheqels  of  silver,  for  the  prize  of  the  grain  of  the 
GISH-BAR,  out  of  the  prize  of  the  palace,  the  property  of  the 
scribe  Utul^Ishtar,  which  the  merchant  Sin-4shmeani  son  of  Awilija 
had  received,  Ilushu-4bi  son  of  Marduk-Mushalim  has  borrowed 
from  the  merchant  Sin-ishmeani  son  of  Awilija.  ...  he  shall 
pay  back  to  the  bearer  of  his  tablet  the  grain,  GISH-BAR  of 
the  god  Shamash,  in  Kar  Sippar, 


NO.  2.    LATER  CONTRACT  TABLETS i 

I.  —  Remut  lends  Money  to  his  Needy  Neighbours  dur- 
ing A  Time  of  Dearth 

This  inscription,  the  writing  of  which  is  above  the  average,  is  divided 
into  four  sections.  The  first  gives  the  text  of  the  transaction;  the 
second  the  names  of  the  witnesses ;  the  third  the  name  of  the  scribe,  the 
place,  and  the  date ;  and  the  fourth  the  record  of  the  famine.  It  is  a  re- 
markable text,  and  possesses  a  value  beyond  the  mere  record,  for  it  shows 
how  great  the  need  of  the  people  must  have  been.  The  tablet  is  num- 
bered 81-11-3,  71.  This  interesting  text  is  a  good  proof  of  the  unsettled 
state  of  Babylonia  at  the  time  it  was  written.  It  was  in  the  year  648  b.c. 
Samas-sum-uktn  or  Saosduchinos  had  been  on  the  throne  of  Babylonia, 
under  the  suzerainty  of  his  brother,  Assur-bani-apli,  for  19  years,  and  the 
end  of  his  rule,  and  his  own  tragic  death,  were  nearing.  The  Assyrian 
army,  sent  by  his  brother,  was  probably  at  that  time  overrunning  the 
land,  and  destroying  everything  wherever  they  passed.  Hence  were  the 
people  overtaken  by  want  and  misery,  such  as  often  happened  to  them  in 
those  days.  If  we  want  to  know  how  the  Babylonians  behaved  towards 
each  other  during  this  trying  time,  the  tablet  here  translated  depicts  it 
to  us  clearly,  and  it  is  a  picture  worthy  of  consideration.  Remut,  a  man 
probably  richer  and  more  fortunate  than  his  neighbours,  lends  a  sum  of 
money  which  was  hardly  to  be  considered  small  (|ths  of  a  mana  =  50 
shekels)  to  Mus^zib-Marduk  and  KuUa,  his  wife,  without  interest  (for 
none  is  mentioned).  This  money  is  lent,  not  for  a  week  or  a  month,  but 
until  the  land  brings  forth  again,  whenever  that  might  be.  All  honour 
to  Remut.  It  is  to  be  hoped  that  he  and  his  friends  passed  happily  through 
this  trying  time  when  there  was  "want  and  famine  in  the  land,  and  the 
people  were  dying  for  want  of  food" ;  and  well  has  Marduk-edhir,  the 
scribe,  done  in  recording  the  fact. 

The  name  of  the  city  mentioned  in  the  last  paragraph  (Lamima)  is 
doubtful.  The  last  syllable  may  be  ra,  in  which  case  we  must  read 
Lamira.  There  is  yet  a  third  possibility,  namely,  that  the  characters 
are  quite  correctly  read,  but  that  the  final  ma  is  the  well-known  enclitic 
particle.  If  this  be  the  case,  we  must  read  "At  this  time,  in  the  city  of 
Lami  also,  there  is  want  and  famine  in  the  land."  After  the  word  makaW 
there  is  a  small  piece  of  the  tablet  broken  away,  but  this  seems  to  have 
contained  no  word  of  importance,  if,  indeed,  it  was  inscribed  at  all. 

^  [Reprinted  by  permission  from  "Records  of  the  Past,"  N.  S.  (Vol. 
IV,  p.  96  seq.)  published  by  Samuel  Bagster  and  Sons,  London.  Translated 
by  Theo.  G.  Pinches.] 


686  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

1.  I  of  a  mana  of  silver  from  Remut,  son  of  .  .  .,  unto  Musezib- 
Marduk,  and  Kulla,  his  wife,  for  necessities.  In  the  day  when 
the  face  of  the  land  sprouts  (again),  the  money,  f  of  a  mana,  in 
its  full  amount,  Musezib-Marduk  and  Kulla  shall  repay  to  Remut. 

2.  Witnesses :  Abla,  son  of  Arad-bit-Nergal ;  Sapik-zeri,  son 
of  Musezib-Marduk;  Bel-upakhkhir,  son  of  Tullubu;  Ugara, 
son  of  Sippe ;  Nabu-sum-utsur,  son  of  the  potter ; 

3.  and  the  scribe,  Marduk-edhir.  Babylon,  month  Tebet, 
day  9th,  year  19th,  Samas-sum-ukin  king  of  Babylon. 

4.  At  this  time,  in  the  city  of  Lamma,  want  and  famine  [are] 
in  the  land.     The  people  are  dying  for  want  of  food. 

II.  —  A  Testimony  to  Babylonian  Overlordship  in  Tyre 

The  Governor  of  Kadesh  makes  a  Pledge  with  Regard  to  Some 

Cattle 

This  little  text,  which  is  an  ordinary  contract-tablet  of  unbaked  clay, 
is  important  not  only  as  giving  the  date  of  the  Babylonian  dominion  so 
far  from  Babylonia,  but  also  for  the  names,  some  of  which  are  clearly 
Phoenician.  The  text  is  slightly  damaged,  but  the  wanting  characters 
can,  in  every  case,  be  restored  with  perfect  certainty.  The  number  is 
81-4-28,  88. 

The  cause  of  Milki-idiri  taking  the  obligation  here  recorded  upon 
himself  it  is  unfortunately  impossible  to  determine.  Judging,  however, 
from  the  fact  that  it  is  cattle  that  are  given,  and  that  only  in  event  of 
inability  to  get  the  animals,  money  was  to  be  substituted,  it  maj^  be 
inferred  that  he  entered  into  the  obligation  by  way  of  compensating  Abla 
for  a  loss  for  which  he  was  in  some  way  responsible.  The  contract  gave 
Milki-idiri  nearly  ten  months  in  which  to  discharge  the  obligation  (22d 
of  Tammuz,  or  June-July,  to  the  15th  of  lyyar,  or  April-May).  .  .  . 

.  .  .  The  name  Kidis  (which  was  probably  pronounced  Kedes  or  Kedesh) 
is  undoubtedly  Kedesh  (Kadesh) ,  on  the  lake  of  Horns,  a  site  of  consider- 
able interest,  in  that  it  was  the  scene  of  a  conflict  between  Rameses  II 
and  the  Kheta  or  Hittites,  and  is  supposed  to  be  mentioned  in  2  Samuel 
xxiv.  6,  under  the  name  of  Takhtim  Khodshi,  in  the  neighbourhood  of 
Tyre  and  Sidon. 


About  the  beginning  of  July,  therefore,  in  the  year  564  b.c,  Melek- 
hidri,  Governor  of  Kadesh,  visited  Tyre  for  the  purpose  of  attending  to 
his  affairs. 

On  the  15th  day  of  the  month  lyyar,  Milki-idiri,  Governor  of 
Kidis,  will  get  three  cows  and  their  young,  and  will  give  them  to 
Abla,  son  of  Nadin-akhi,  descendant  of  the  priest  of  the  Sungod. 
If  he  cannot  get  (them) ,  Milki-idiri  will  give  to  Abla,  son  of  Nadin- 
akhi,  son  of  the  priest  of  the  Sungod,  5  manna  of  silver. 

Witnessing  :  Bunduti,  son  of  Nabu-ukin,  descendant  of  Nabutu ; 
Musezib-Marduk,  son  of  Abla,  descendant  of  the  fisherman  ( ?) ; 
Marduk-sakin-sumi,  son  of  Marduk-edhir,  descendant  of  Edheru ; 


Chap.  XXIV,  §  2,  2.]   LATER  CONTRACT  TABLETS  687 

and  the  scribe,  Pir'u,  son  of  Sula.     Tyre,  month  Tammuz,  day 
22d,  year  40th,  Nebuchadnezzar,  King  of  Babylon. 


III.  —  Neriglissar  gives  his   Daughter    Gigitum  in  Mar- 
riage TO    Nabu-sum-ukin,  Priest  of    Nebo,  and  Direc- 
tor   OF    E-ZIDA 

This  tablet  is  one  of  the  class  of  wedding-contracts,  and  is  unfortu- 
nately only  a  fragment.  Such  as  it  is,  however,  it  is  a  welcome  addition 
to  our  knowledge,  and  it  is  greatly  to  be  hoped  that  a  duplicate,  complet- 
ing the  text,  will  some  day  be  found.  The  Museum  number  is  81-11-3, 
222. 

Although  this  tablet  is  not  by  any  means  perfect,  and  the  text  does  not, 
in  its  present  state,  communicate  to  us  the  conclusion  of  the  matter,  it 
may  nevertheless  be  regarded  as  tolerably  certain  that  Neriglissar  did 
give  his  daughter  Gigitum  in  marriage  to  Nabu-sum-ukin;  for,  had  it 
been  otherwise,  there  would  have  been  no  need  for  this  document,  the 
importance  attached  to  which  may  be  gathered  from  the  fact  that  more 
than  one  copy  was  made,  the  text  preserved  in  the  British  Museum  being 
that  belonging  to  the  temple  (E-zida,  the  Birs-Nimroud)  of  which  Nabu- 
sum-ukin  was  high-priest  and  director. 

As  will  be  seen  from  the  translation,  Nabu-sum-ukin  does  not  use  any 
pronoun  when  making  his  request  known  to  Neriglissar.  He  merely 
says,  "Give  Gigitum,  thy  virgin  daughter,  to  wifehood,  and  let  her  be  a 
wife,"  or  "the  wife."  An  examination  of  texts  of  a  similar  class  shows 
that  this  was  the  customary  formula.  The  word  for  "wife"  is  written 
with  the  usual  ideogram,  and  is  unaccompanied  by  any  pronoun.  A 
similar  text  in  the  Liverpool  Museum,  however,  spells  the  word  out. 
^  .  .  Other  examples  of  this  grammatical  usage  exist. 

The  remainder  of  the  tablet  was  probably  taken  up  with  the  usual  con- 
ditions—  the  penalty  on  Nabu-sum-uldn  if  he  should  divorce  or  aban- 
don his  wife ;  the  penalty  on  Gigitum  if  she  should  disown  or  forsake  her 
Jiusband;  directions  with  regard  to  the  amount  and  disposal  of  her 
dowry,  etc.  It  is  here  to  be  noted  that  Herodotus  was  probably  wrongly 
informed  with  regard  to  the  compulsory  nature  of  the  public  prostitution 
■of  unmarried  women  practised  in  ancient  Babylonia,  for  the  expressions 
found  in  these  tablets  point,  sometimes,  as  in  the  present  case,  to  a  belief, 
on  the  part  of  the  bridegroom,  in  the  chastity  of  the  woman  chosen  by 
him  to  be  his  wife. 

Doubtless  the  priesthood  of  Babylon  were  highly  elated  that  one  of 
their  number  had  allied  himself  by  marriage  with  the  royal  family  of 
Babylon,  for  this  must  have  added  greatly  to  their  prestige  and  influence 
at  the  time.  The  date  is  March-April,  the  Babylonian  New-Year's  Day, 
.560  B.C. 

Nabu-sum-ukin,  priest  of  Nebo,  director  of  E-zida,  son  of 
Siriktum-Marduk,  descendant  of  Isde-ilani-danan,  said  to  Neri- 
ghssar,  king  of  Babylon :  "  Give  Gigitum,  thy  virgin  daughter, 
to  wifehood,  and  let  her  be  a  wife."  Neriglissar  (said)  to  Nabu- 
sum-ukin,  priest  of  Nebo,  director  of  E-zida. 

About  twenty-eight  lines  are  wanting  here,  the  text  becoming  again 
legible  at  the  end  of  the  list  of  witnesses  on  the  reverse :  — 


688  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

....  son  of  Nabu-sum-lisir  .... 
.   .   .   .  ri,  son  of  Nabu-sarra-utsur,  the  judge  ( ?  ?) 
Nabu-sum-utsur,  the  scribe,  son  of  Assur  .   .   . 
Babylon,  month  Nisan,  day  1st,  year  1st, 
[NerigHs]sar  king  of  Babylon.     Copy  of  E-zida. 

IV.  —  The  Medes  and  Peksians  in  Bactria 
Sa~Nabu-duppu  sells  his  Bactrian  Slave-girl 

This  text,  which  is  rather  mutilated,  is  an  ordinary  sale-tablet.  Its 
importance,  however,  will  be  easily  seen,  for  it  is  seldom  that  records  of 
battles  and  warlike  expeditions  are  to  be  found  on  contract-tablets.  It  is 
therefore  one  of  the  most  interesting  tablets  of  its  class,  and  even  the  names 
of  the  witnesses  possess  a  special  value.  The  tablet  is  composed  of  three 
fragments,  which  were  found  by  me  to  join  some  years  ago.  The  number 
is  82-9-18,  4215  +  4226. 

One  of  the  important  points  concerning  this  text  is  that,  by  the  tenth 
year  of  Darius,  five  battles  had  been  fought  with  a  Bactrian  tribe ;  and 
it  is  not  unlikely  that  Sa-Nabu-duppu  acquired  Nana-silim  (the  unfor- 
tunate woman  had  received  a  Babylonian  name,  in  accordance  with  the 
custom  of  the  time)  from  the  daughter  of  the  man  who  captured  her, 
namely,  Sin-edhir.  The  remainder  of  the  contract  proper  is  of  the  usual 
kind,  and  refers,  like  many  others,  to  the  taking  of  a  duty  or  responsibility 
by  one  of  the  contracting  parties  (in  this  case  the  son  of  the  seller),  to 
guarantee  the  buyer  against  any  claim  hereafter  on  the  part  of  the  seller, 
his  kinsfolk,  or  the  king. 

In  my  first  rendering  I  read  the  name  of  the  slave  as  Nan^-khusa ;  and 
Khupiri  (which  I  regarded  as  the  name  of  a  Bactrian  tribe)  instead  of 
sipiri.  Noting,  however,  that  the  khu  in  Akhume  (see  the  list  of  wit- 
nesses) was  differently  formed,  it  now  seems  to  me  better  to  read  these 
words  as  Nand-silim  and  sipiri,  which  readings  I  have  adopted  here. 
The  sipiri  was  a  Babylonian  official  attached  to  the  household  of  the  king 
and  princes  of  the  blood.  From  our  text  it  would  seem  that  this  official 
also  conducted  military  expeditions,  at  least  in  Persian  times.  What  is 
the  meaning  of  the  word  dursu,  against  which  the  sipiri  seems  to  have  gone, 
is  uncertain.  There  is  no  determinative  prefix  or  suffix  indicating  that 
it  is  the  name  either  of  a  person,  a  place,  or  a  river,  though  something  of 
the  kind  might  be  expected. 


All  the  above  texts  were  excavated  by  Mr.  Hormuzd  Rassam,  in  1881 
and  1882  at  Babylon  and  Sippara,  the  latter  supposed  to  be  the  Sephar- 
vaim  of  the  Bible. 

Sa-Nabu-duppu,  son  of  Nabu-sarra-utsur,  with  cheerfulness 
of  heart,  has  sold  Nana-silim,  his  Bactrian  slave,  from  the  5th 
battle  of  the  sipiri  against  dursu,  whose  right  side  and  hand  are 
inscribed  with  the  name  of  Dhibta,  daughter  of  Sin-edhir,  for 
[  .  .  .  mana  .  .  .  shekels  of  silver],  which  is  by  the  1  shekel 
piece,  coined,  not  standard,  for  the  price  complete,  to  Issar-Taribi, 
son  of  Mur-epus.  [N.],  son  of  Sa-Nabu-duppu,  takes  the  respon- 
sibility [of  defeasor,  claimant],  royal-handmaidship,  (or)  born- 
daughtership,  which   (may  be)  upon  Nana-silim.     [The  money. 


Chap.  XXIV,  §  2,  3.]      ASSYRIAN   PRIVATE   CONTRACT  TABLETS  689 

.  .  .  mana  .  .  .  shekels  of  silver],  which  is  by  the  1  shekel  piece, 
coined,  not  standard,  (the  price  of  the  slave),  Sa-Nabu-duppu, 
son  of  Nabu-sarra-utsur,  has  received  [from  the  hands  of]  Issar- 
taribi,  son  of  Mur-epus. 

Witnessing :  Tsilla,  son  of  Akhume-  .  .  . ;  ...  son  of  Ga- 
maryawa  (Gamariah) ;  Sa-pi-  [Bel  ?  son  of]  .  .  .  ;  Barikia  (Bere- 
chiah),  son  of  ...  ;  ...  son  of  Qudda;  Samas-iriba  (son 
of)  .  .  .  ;  Ilani-bakhadi,  son  of  .  .  .  ;  and  the  scribe  Mar- 
duka,  son  of  Epes-ili.  Sippar,  month  lyyar,  18th  day,  10th  year, 
Dariawush  (Darius),  king  of  Babylon  and  countries. 

At  the  sitting  of  Dhibta,  daughter  of  Sin-edhir,  wife  of  Man- 
.  .  .  -Samas. 

NO.  3.    ASSYRIAN  PRIVATE  CONTRACT  TABLETS  ^ 

These  private  contract-tablets  will  give  some  idea  of  the  activity  of 
trade  and  business  in  Western  Asia  in  the  7th  and  8th  centuries  b.c. 
In  consequence  of  the  overthrow  of  Tyre,  Carchemish  seems  to  have  be- 
come the  chief  commercial  centre  of  the  Eastern  world.  The  clay-tablets 
are  attested  by  the  seal-impressions,  or  in  lieu  thereof,  by  the  nail-marks, 
of  the  parties  to  whom  they  belonged.  Several  of  them  have  dockets 
attached,  written  in  the  Phoenician  character;  and  these  bilingual  leg- 
ends are  valuable  corroborations  of  the  accuracy  of  Assyrian  decipher- 
ment. The  tablets  here  translated  will  be  found  in  the  "Cuneiform 
Inscriptions  of  Western  Asia,"  Vol.  Ill,  plates  46-50. 

Tablet  I 

Ten  shekels  of  the  best  silver,  (being)  chains  for  Istar  of  Nine- 
veh, which  Billu-baladh,  in  the  presence  of  Manuci-Arbela  [here 
follow  3  seals],  has  lent  on  a  loan ;  the  silver  is  to  have  interest 
paid  upon  it  at  4  per  cent.  On  the  3rd  day  of  the  month  the  sil- 
ver has  been  given.  (Dated)  3rd  day  of  the  month  Sebat,  during 
the  eponymy  of  Rimmon-sallim-ani.  The  witnesses  (were) : 
Khattal-munu,  Rahu,  Kulduin,  Neriglissor,  Arakh-Nebo  the 
Serippian,  Musezib-Assur,  Nebo-sallim-sunu,  Khanni,  (and) 
Bil-sadan. 

[Then  follow  two  lines  and  a  half  of  Phoenician,  the  first  of  which 
consists  of  the  proper  name,  Mannugi-Arbela.] 

Tablet  II 

Two  talents  of  iron,  the  property  of  Istar  of  Arbela,  which  Mannu- 
ci-Arbela,  in  the  presence  of  Samas-akhi-erib,  in  the  month  of  Ab, 

[1  Translated  by  Rev.  A.  H.  Sayce.  Reprinted,  by  permission,  from 
''Records  of  the  Past,"  (Vol.  I,  p.  137  seq.),  published  by  Samuel  Bagster 
and  Sons,  London.] 


690  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 

gives ;  if  they  are  not  given  back,  at  3  per  cent,  shall  be  the  inter- 
est upon  them.  On  the  11th  day  of  the  month  Sivan  during  the 
eponymy  of  Bamba ;  ^  before  the  witnesses :  Istar-bab-esses, 
Kua,  Sarru-ikbi,  Dumku-pani-sarri,  (and)  Nabua. 

Tablet  III 

Four  manehs  of  silver  according  to  the  standard  of  Carchemish, 
which  Neriglissar,  in  the  presence  of  Nebo-sum-iddin,  son  of  Nebo- 
rahim-baladhi,  the  Keeper  of  the  Crown,  from  the  city  of  Dur- 
Sargon,  lends  out  at  5  shekels  of  silver  per  month  interest.  The 
26th  day  of  the  month  lyyar,  during  the  Eponymy  of  Gabbaru.^ 
The  witnesses  (were) :  Nebo-pal-iddin,  Nebo-atsib,  the  holder  of 
the  two  sceptres,  Akhi-ramu,  of  the  same  office,  Assur-danin-sarri, 
of  the  same  office,  Disi  the  astronomer,  Samas-igur  .  .  .,  Sin  mati- 
kali  the  executioner,  (and)  Merodach  .  .  .  the  astronomer.. 

Tablet  IV 

The  seal  of  Ebed-Istar,  the  master  of  the  men.  The  giving-up 
of  Hoshea,  his  two  wives  Mih'sa  (and)  Badia,  'Sigaba,  Bel-kharran- 
cunucci,  (and)  his  two  daughters,  in  all  7  persons,  slaves,  whom 
Ebed-Istar  has  sold ;  and  'Simadi  for  3  manehs  of  silver  has  taken. 
The  whole  sum  hast  thou  given.  The  exchange  (and)  the  contract 
are  finished :  (there  is)  no  withdrawal.  The  witnesses  (are) 
Bel-nuri  the  priest,  Amyatehu,  'Sangi,  Kat-i'sa  (and)  'Sidur. 
(The  name  of  the  6th  witness  is  not  filled  in.)  The  month  Tisri ; 
the  Eponymy  of  Dananu.^ 

[Then  follow  two  lines  of  Phoenician.] 

Tablet  V 

The  nail-mark  of  Sarru-ludari,  the  nail-mark  of  Atar-'suru, 
(and)  the  nail-mark  of  the  women  Amat-'Suhala,  the  wife  of  Bel- 
duru,  the  .  .  .  .  ,  the  owner  of  the  house  (which)  is  given  up. 
(Then  follow  4  nail-marks.)  The  whole  house  with  its  woodwork 
and  its  doors,  situated  in  the  city  of  Nineveh,  adjoining  the  houses 
of  Mannu-ci-akhi  and  Ilu-ciya,  (and)  the  property  of  'Sukaki  he 
has  sold,  and  Tsillu-Assur  the  astronomer,  an  Egyptian,  for  one 
maneh  of  silver  (according  to)  the  royal  (standard),  in  the  presence 
of  Sarru-ludari,  Atar-'suru,  and  Amat-'suhala,  the  wife  of  its 

1  B.C.  650-640.  2  B,c.  667.  »  cir.  b.c.  680. 


Chap.  XXIV,  §  2,  4.]  ASSYRIAN  DEEDS  691 

owner,  has  received  it.  The  full  sum  thou  hast  given.  This 
house,  has  been  taken  possession  of.  The  exchange  (and)  the 
contract  are  concluded.  (There  is)  no  withdrawal.  Whosoever 
(shall  act)  feloniously  among  any  of  these  men  who  have  sworn 
to  the  contract  and  the  agreement,  which  (is)  before  (our)  prince 
Assur,  10  manehs  of  silver  shall  he  pay.  The  witnesses  (are) : 
Su'san-kukhadnanis,  Murmaza  the  .  .  .  ,  Ra'suah  the  pilot, 
Nebo-dur-sanin  the  partitioner  of  the  enemy,  Murmaza  the  pilot, 
Sinnis-nacarat,  (and)  Zedekiah.  The  16th  day  of  the  month 
Sivan,  the  eponymy  of  Zaza  ^  of  the  city  of  Arpad,  before  Samas- 
itsbat-nacara,   Latturu,    (and)   Nebo-sum-yutsur. 

NO.  4.    ASSYRIAN  DEEDS 2 

The  commercial  and  legal  deeds  belong  to  the  most  difficult  class  of 
inscriptions,  and  have  necessarily  required  a  great  deal  of  study.  Sir 
Henry  Rawlinson  first  pointed  out  the  importance  of  these  tablets,  and 
I  translated  some  Babylonian  commercial  texts  in  my  pamphlet  "Sur  les 
Inscriptions  Commerciales,"  1861,  I  also  gave  a  translation  of  the  first 
juridical  text  in  the  "Revue  Archeologique,"  1864. 

I  am  not  aware  that  the  Assyrian  deeds  have  ever  been  explained  in  a 
way  that  would  satisfy  a  legist;  some  scholars,  among  whom  may  be 
named  Mr.  Sayce,  have  turned  their  attention  to  them,  several  others 
examined  them  merely  on  account  of  the  most  curious  dates  and  eponymic 
names  that  are  to  be  found  in  them.  But  the  real  importance  of  these 
very  numerous  deeds  consists  in  the  light  which  they  will  hereafter  throw 
upon  the  civilization  of  Assyria  and  Chaldea  in  general,  and  the  history 
of  legislation  in  particular.  [These  inscriptions  are  respectively,  W.  A.  I., 
Ill,  plates  48-3,  49-1,  and  49-3.] 


Deed  of  Sale  of  a  House  belonging  to  Phenicla.n  Owners, 
WITH  Egyptian  Witnesses 

Nail-mark^  of  Sar-ludari,  nail-mark  of  Akhassuru,  nail- 
mark  of  the  woman  Amat-Su'la,  wife  of  Bel-dur,  Captain  in  the 
army,  owners  of  the  sold  house ; 

[Four  nail-marks.] 

A  house,  well  constructed,  with  its  beams  and  its  doors,  situated 
in  the  city  of  Nineve,  near  the  house  of  Mannu-ki-akhe,  near 
the  house  of  El-ittiva,  near  the  markets. 

And  has  acquired  it  Sil-Assur,  the  Chief,  an  Egyptian;   for 

1  B.C.  692. 

[2  Translated  by  Dr.  Jules  Oppert.  Reprinted  by  permission  from 
"Records  of  the  Past"  (Vol.  VII,  p.  Ill  seq.),  published  by  Samuel  Bag- 
ster  and  Sons,   London.] 

3  The  nailmarks  are  used  instead  of  a  seal. 


692  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

one  mina  of  the  King,  of  silver/  he  has  bought  it  from  Sar-ludari, 
from  Akhassuru,  from  the  woman  Amat-Su'la,  wife  of  the 
(named)  husband. 

The  price  has  been  definitively  fixed,  this  house  has  been  paid 
and  bought,  the  retractation  of  the  contract  and  the  annulment  is 
not  admitted.^ 

Whosoever,  in  future,  at  any  time  amongst  these  men  (sellers) 
will  claim  before  me  an  annulment  of  the  contract,  from  Sil- 
AssuR,  shall  give  10  mines  of  silver.^ 

In  the  presence  of  Susanqa,  son-in-law  of  the  King,  of  Harmaza, 
Captain,  of  Rasu,  sailor,  of  Nabu-dur-usur,  spy  of  strangers,  of 
Harmaza,  Chief  of  the  sailors,  of  Sin-sar-usur,  of  Zidqaiu.^ 

In  the  month  of  Sivan,  the  26th  day,  in  the  eponymy  of  Zazai, 
Governor  of  Arpad.^ 

Judged  before  Samas-yukin-akh,  before  Litturu,  before 
Nabu-sum-usur. 

II 
Deed  of  the  Sale  of  Israelites  by  a  Phenician 

On  the  obverse.  Seal  of  Dagan-milki,  the  owner  of  the  sold 
slaves. 

[Seal.] 

Imannu,^  the  woman  U  .  .  .^  Melchior,  in  all  three  persons. 

And  has  acquired  them  Bel-malik-ili,  the  mugil  of  the  propriety 
of  the  King ;  for  3  mines  of  silver,^  each  mina  according  to  the  use 
of  the  city  of  Karkamis,  he  has  bought  them  from  Dagan-milki. 

The  price  has  been  definitively  fixed,  these  persons  have  been 
paid  and  bought,  the  retractation  of  the  contract  and  its  annulment 
is  not  admitted. 

'..Whosoever,  in  future,  at  any  time,  will  stand  before  me,  and 
invoke  me,  either  Dagan-milki,  or  his  brothers,  or  his  brothers' 
sons,  or  any  body  of  his,  or  a  mighty  man,  who  would  claim  from 
before  me  the  annulment  of  this  contract,  from  Bel-malik-ili,  his 
sons,  or  his  grandsons,  shall  give  10  mines  of  silver^  one  mine  of 
gold,^  to  the  goddess  Istar  of  Arbela.  He  shall  return,  with  the 
tenth,  the  price  to  the  owners.  Then  he  will  get  rid  of  his  contract, 
he  has  not  sold. 

In  the  presence  of  Addai,  the  Chief  (mil)  of  Akhirame,  ditto,  of 

*  £9  sterling. 

2  Or  in  ordinary  legal  phraseology  "  this  contract  shall  not  hereafter  be 
retracted  or  annulled." 

3  £90.  "Sedkia.  »  b.c.  891.  « Heiman. 
^  Lacuna.             s  £27.                        9  £140,  with  £90  silver,  £230. 


Chap.  XXIV,  §  2,  4.]  ASSYRIAN   DEEDS  693 

Paqaha/  the  head  of  .  .  .  .,^  of  Nadbiyahu^  (the  great  kusu), 
of  Bel-simeani,  before  Bin-Dikiri,  of  Tabsar-Istar,  of  Tabni,  the 
Chief,  who  is  possessor  of  the  sum. 

In  the  month  of  Ab,  the  20th  day,  of  the  eponymy  of  Mannu- 

KI-ASSUR-LIH.^ 

Ill 

Sale  of  a  Woman,  by  her    Father  and  her   Brothers,  to 
:  AN  Egyptian  Lady,  named  Nitocris,  in  order  to  Marry 

\  HER  TO   HER   SON   SiHA 

It  will  be  noticed  that  there  is  a  special  clause  concerning  her  possible 
heirs,  as  the  woman  had  a  first  husband.    This  is  a  very  curious  tablet. 

Seal  of  Nabu-rikhti-usur,  son  of  Akhardise,  the  Hasean,  who 
assists  in  his  art  Zikar-Istar,  in  the  town  of  .  .  .^,  seal  of 
Tebetai,  his  son,  seal  of  Silim-Assur,  his  son,  the  owners  of  the 
sold  woman.  , 

[Seals.] 

The  girl  Tavat-hasina,  daughter  of  Nabu-rikhti-usur. 

And  acquired  her  Nihti-eqarrau  ^  for  16  drachmes  of  silver,^ 
for  the  sake  of  Siha,^  for  to  marry  her,  she  bought  her.  She 
will  be  the  wife  of  Siha. 

The  price  was  definitively  fixed. 

Whosoever,  in  future,  at  any  time,  will  stand  before  me  (the 
Judge),  and  will  invoke  me,  either  Nabu-rikhti-usur,  or  his  sons, 
or  his  grandsons,  or  his  brothers,  or  his  brothers'  sons,  or  his  repre- 
sentative, or  any  body  of  his,  who  would  claim  before  me  the 
annulment  of  the  contract  from  Nihti-eqarrau,  her  sons  or  her 
grandsons,  shall  give  ten  mines  of  silver.  Then  he  shall  be  free 
from  his  contract,  he  has  not  sold. 

Sahpimayu,  the  sailor,  Bel-sum-idin,  son  of  Udanani,  Ardu- 
Tavat,  son  of  Ate,  the  man  .  .  .  .,^  these  are  the  three  heirs  of  the 
woman,^^  on  account  of  the  fastening  the  hands  and  the  tying  of 
the  knots  "  with  Kermeoni,  who  was  the  heir. 

In  the  presence  of  Akhardise,  of  .  .  .^  nipikalantakar,  of 
Muthumhepu,  of  Hasba  .  .  ,^  of  .  .  .  ,^  of  ...  ,^  of  ...  ,^ 
of .  .  .  ,^  of  .  .  .  ^l2  of  Ulalai  .  .  .' 

^  The  Jewish  name  Pekah.  ^  Lacuna. 

2  Evidently  a  Jew ;   the  name  is  found  in  the  Bible.  *  b.c.  709. 

^  Lacuna.                                   ^  Nitocris.  ^  £2  8s. 

^  Or,  Tachos.                             ^  Lacunae.  i°  Nitocris. 

11  Certainly  the  expression  of  a  ceremony,  perhaps  the  wedding  per- 
formances. 

12  Five  names  lost. 


694  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

In  the  month  of  Elul,  the  first  day,  of  the  eponymy  of  AssuR- 

SADU-SAQIL. 

Judged  before  Nur-Samas,  before  Muthumpaiti,  before  Ate^ 
before  Nabu-idin-akhe,  the  chief. 

NO.  5.    CONTRACT-TABLETS  RELATING  TO  BELSHAZZARi 

The  three  contracts  which  follow  are  among  the  numerous  cuneiform 
documents  of  the  same  class  the  publication  of  which  we  owe  to  the 
indefatigable  labours  of  Dr.  Strassmaier.  They  are  published  in  his 
"  Babylonische  Texte :  Inschriften  von  Nabonidus,"  i,  iii,  Nos.  184,  581, 
and  688,  and  are  interesting  on  account  of  their  references  to  Belshazzar, 
the  eldest  son  of  Nabonidos,  whose  name  is  written  in  Babylonian  Bilu- 
sarra-utsur,  "O  Bel,  defend  the  king."  It  is  especiallj'^  curious  to  learn 
from  one  of  them  that  the  heir-apparent  to  the  throne  had  to  conform  to 
the  same  legal  obligations  as  the  meanest  of  his  subjects.  Security  was 
exacted  by  him  for  the  payment  of  a  debt,  a  portion  of  the  security  being 
a  house  inhabited  by  a  Persian.  As  Persian  slaves  are  mentioned  in  other 
deeds  of  the  period  it  is  possible  that  the  Persian  in  question  was  a  slave. 
At  all  events  the  notice  of  him  proves  that  there  were  Persians  living  in 
Babylon  before  the  conquest  of  the  country  by  Cyrus.  The  third  docu- 
ment, it  will  be  observed,  is  dated  six  years  before  the  overthrow  of  Nabo- 
nidus and  the  entrance  of  Cyrus  into  Babylon. 


No.   I 

A  house  belonging  to  Nebo-akhi-iddin,  the  son  of  Sula,  the  son 
of  Egibi,  which  adjoins  the  the  house  of  Bel-nadin,  the  son  of 
Rimut,  the  son  of  the  soldier  ( ?)  has  been  handed  over  (by  Nebo- 
akhi-iddin)  for  3  years  to  Nebo-yukin-akhi  the  secretary  of 
Belshazzar,  the  son  of  the  king,  for  1 J  manehs  of  silver,  sub-letting 
of  the  house  being  forbidden,  as  well  as  interest  on  the  money. 
(Nebo-yukin-akhi)  undertakes  to  plant  trees  and  repair  the  house. 
At  the  expiration  of  the  3  years  Nebo-akhi-iddin  shall  repay  the 
money,  namely  Ij  manehs,  to  Nebo-yukin-akhi,  and  Nebo-yukin- 
akhi  shall  quit  the  house  in  the  presence  of  Nebo-akhi-iddin.  The 
witnesses  (are)  Kabitya,  the  son  of  Tabnea,  the  son  of  Egibi ; 
Tabik-zira,  the  son  of  Nergal-yusallim,  the  son  of  Sin-karabi- 
isime;  Nebo-zira-ibni  the  son  of  Ardia;  and  the  priest  Bel- 
akhi-basa,  the  son  of  Nebo-baladhsu-iqbi.  (Dated)  Babylon, 
the  21st  day  of  Nisan,  the  5th  year  of  Nabonidus  king  of 
Babylon.2 

^  [Translated  by  Rev.  A.  H.  Sayce.  Reprinted  by  permission  from 
"Records  of  the  Past,"  N.  S.  (Vol.  Ill,  p.  124  seg.),  published  by  Samuel 
Bagster  and  Sons,  London.] 

2  B.C.  551. 


Chap.  XXIV,  §  2,  5.]   CONTRACT-TABLETS  RELATING  TO  BELSHAZZAR     695 


No.   II 

The  sum  of  20  manehs  of  silver  for  wool,  the  property  of  Bel- 
shazzar,  the  son  of  the  king,  which  has  been  handed  over  to  Iddin- 
Merodach,  the  son  of  Basa,  the  son  of  Nur-Sin,  through  the  agency 
of  Nebo-tsabit  the  steward  of  the  house  of  Belshazzar,  the  son  of 
the  king,  and  the  secretaries  of  the  son  of  the  king.  In  the  month 
Adar,  of  the  11th  year  (of  Nabonidus),  he  gives  the  money,  namely 
20  manehs.  The  house  of  .  .  .  the  Persian  and  all  his  property 
in  town  and  country  shall  be  the  security  of  Belshazzar,  the  son 
of  the  king,  until  he  shall  pay  in  full  the  money  aforesaid.  The 
money  which  he  shall  (meanwhile)  make  upon  [the  property]  (?), 
he  shall  pay  as  interest.  Witnessed  by  Bel-iddin,  the  son  of  Rimut, 
the  son  of  the  soldier ( ?) ;  Etilpi,  the  son  of  .  .  .  the  son  of  the 
father  of  the  house ;  Nadin,  the  son  of  Merodach-[sum-utsur],  the 
son  of  the  superintendent  of  the  works ;  Nergal-yusallim,  the  son 
of  Merodach-[edir],  the  son  of  Gasura;  Merodach-natsir,  the 
son  of  Samas-  .  .  .  ,  the  son  of  Dabibi ;  and  the  priest  Bel-akhi- 
iddin,  the  son  of  Nebo-baladhsu-iqbi.  (Dated)  Babylon,  the 
20th  day  of  the  month  .  .  .  ,  the  11th  year  of  Nabonidus  king 
[of  Babylon].^ 

No.    Ill 

One  maneh  16  shekels  of  silver  capital  and  interest,  the  property 
of  Nebo-tsabit-ida,  the  steward  of  the  house  of  Belshazzar,  the 
son  of  the  king,  w^hich  (he  owes)  to  Beliddina,  the  son  of  Bel-sum- 
iskun,  the  son  of  Sin-tabni,  and  the  seed  grown  in  sight  of  the  chief 
gates  (of  Babylon)  which  has  been  taken  as  security  (for  it). 
The  money,  namely  1  maneh  16  shekels,  Nebo-tsabit-ifla,  by  the 
agency  of  Itti-Merodach-baladhu,  the  son  of  Nebo-akhi-iddin, 
the  son  of  Egibi,  has  presented  to  Bel-iddina.  *  The  witnesses  (are) 
Nebo-iddina,  the  son  of  Rimutu,  the  son  of  Kiki ;  Bel-iddina,  the 
son  of  Bel-sum-iskun,  the  son  of  Sin-tabni;  Nebo-zira-esir,  the 
son  of  Ina-essu-edir,  the  son  of  the  XJmuk;  ^  Nadinu,  the  son  of 
Merodach-iddin-akhi ;  Nergal-yusallim,  the  priest,  the  son  of 
Merodach-edir,  the  son  of  Gasura.  (Dated)  at  Babylon,  the 
27th  day  of  the  second  Adar,^  the  12th  year  of  Nabonidus  king  of 
Babylon.^ 

1  B.C.  545. 

2  An  officer  who  seems  to  have  had  something  to  do  with  the  beginning 
of  the  year. 

'^  The  intercalary  month  Ve-Adar.  ^  b.c.  544. 


696  ANCIENT   AND    PRIMITIVE    LEGAL   TRANSACTIONS       [Part  IV. 


NO.  6.    CUNEIFORM  TABLETS  OF   KAPPADOKIAi 

We  now  have  evidence  that  the  cuneiform  system  of  writing  was  once 
employed  thi'oughout  the  greater  part  of  the  civilized  world  of  the  East. 
The  Persians  under  Darius  formed  an  aphabet  out  of  it,  which  became  the 
key  to  the  modern  decipherment  of  the  cuneiform  texts.  It  had  origi- 
nally been  the  invention  of  the  primitive  Sumerian  population  of  Chaldsea, 
who  spoke  an  agglutinative  language,  and  from  whom  it  was  borrowed 
by  the  Semitic  Babylonians  and  Assyrians.  In  Elam  it  was  used  to  ex- 
press the  agglutinative  dialects  of  Shushan  and  Mai-Amir,  and  in  the 
ninth  century  before  our  era  it  was  adopted  by  the  kings  of  Ararat,  who 
reigned  at  Van,  and  whose  language  seems  to  have  been  related  to  that 
of  the  Georgians  of  to-day.  A  seal  found  near  Herat  in  1842  shows  that 
even  as  far  east  as  Baktria  the  cuneiform  characters  were  employed 
to  represent  the  language  of  the  country,  and  the  inscription  of  Anu- 
banini,  King  of  Lulubi,  discovered  by  Sir  Henry  Rawlinson  at  Ser-i-pul 
and  lately  copied  by  Mr.  de  Morgan,  tells  us  that  here  also  the  ancient 
language  of  the  inhabitants  had  been  embodied  in  the  characters  of  the 
cuneiform  script.  We  have  learnt  from  the  tablets  of  Tel  el-Amarna 
that  in  the  century  before  the  Exodus  the  same  system  of  writing  was  the 
common  medium  of  literary  intercourse  among  the  various  nations  who 
lived  between  the  Tigris  and  the  frontiers  of  Egypt.  Among  the  corre- 
spondence found  at  Tel  el-Amarna  is  a  long  letter  in  the  language  of 
Mitanni,  the  Aram-Naharaim  of  Scripture,  the  characters  in  which  it  is 
written  being  those  of  the  cuneiform  syllabary,  and  the  extent  to  which 
the  syllabary  was  studied  and  known  in  Canaan  at  the  time  removes  our 
astonishment  at  finding  that  it  has  been  used  to  express  the  Phoenician 
language  on  two  seals  now  in  the  collection  of  M.  de  Clercq. 

The  cuneiform  system  of  writing  and  the  Assyrian  language  had 
penetrated  even  to  the  north-west,  to  the  neighbourhood  of  the  modern 
Kaisariyeh.  The  discovery  of  the  cuneiform  inscriptions  of  Kappadokia 
is  due  to  the  sagacity  of  Mir.  Pinches.  In  1882  he  pointed  out  the  exist- 
ence of  two  tablets,  one  in  the  British  Museum,  the  other  in  the  Louvre, 
which  were  written  in  a  peculiar  form  of  cuneiform  script  and  apparently 
in  an  unknown  language.  They  had  been  obtained  from  an  Armenian 
dealer  in  antiquities  at  Constantinople,  and  the  occurrence  of  the  word 
ku-din-a,  "mules,"  in  the  one  in  the  British  Museum  made  Mr.  Pinches 
connect  it  with  a  tablet  from  Nineveh  in  which  mention  was  made  of 
the  transport  of  these  animals  from  Kusa  in  Kappadokia  ("Proceedings  of 
the  Society  of  Biblical  Archaeology,"  Nov.  1881).  The  following  summer 
Prof.  W.  M.  Ramsay  bought  five  more  tablets  of  a  similar  character  at 
Kaisariyeh,^pon  which  I  published  an  article  in  the  "Proceedings  of  the 
Society  of  BibUcal  Archaeology,"  (Nov.  1883).  As,  however,  I  was  unable 
to  identify  correctly  a  large  number  of  the  characters,  I  was  also  unable 
to  decipher  the  texts,  a^jd  the  conclusions  I  drew  in  regard  to  the  language 
of  them  were  incorrect. 

The  tablets  obtained  by  Prof.  Ramsay  are  now  in  the  British  Museum.. 
Other  tablets  have  since  been  purchased  by  Mr,  Golenischeff,  the  Uni- 
versity of  Philadelphia,  and  myself,  and  it  is  now  known  that  they  are 
found  in  a  place  three  or  four  hours  distant  from  Kaisariyeh. 


The  age  of  the  Kappadokian  tablets  is,  I  believe,  as  early  as  that  of 
the  Tel  el-Amarna  tablets.  We  find  in  both  the  same  archaic  formulae, 
and  the  same  use  of  an  ideograph  by  the  side  of  the  phonetically-written 
w^ord  which  it  denotes.  The  dialect  of  the  tablets  is  distinguished  by  the 
phonetic  peculiarities  which  belong  to  the  letters  from  Northern  Syria 
in  the  Tel  el-Amarna  collection,  and  the  forms  of  the  characters  are 

1  [Translated  by  Rev.  A.  H.  Sayce.  Reprinted  by  permission  from 
"Records  of  the  Past,"  N.  S.  (Vol.  VI,  p.  115  seq.),  published  by  Samuel 
Bagster  and  Sons,  London.] 


Chap.  XXIV,  §  2,  6.]      CUNEIFORM   TABLETS   OF   KAPPADOKIA  697 

similar  in  the  two  classes  of  documents.  The  employment  of  the  mimma- 
tion  also  points  to  an  early  date.  That  Assyria  was  already  in  close  rela- 
tions with  Khani-rabbat  or  Melitene  in  the  fifteenth  century  b.c.  we  have 
learnt  from  the  Tel  el-Amarna  correspondence,  and  the  place  where  the 
tablets  are  found  may  easily  have, been  included  within  the  kingdom  of 
Khani-rabbat.  It  may  be  added  that  one  of  the  tablets  belonging 
to  Mr.  Golenischeff  bears  the  impress  of  a  seal,  upon  which  are  figures  in 
the  Hittite  style  of  art  as  well  as  the  remains  of  a  Hittite  character. 

The  tablets  relate  for  the  most  part  to  the  loan  of  money,  or  the  de- 
posit of  various  objects  in  the  hands  of  certain  persons,  and  they  contain 
a  number  of  technical  terms,  the  meaning  of  which  is  not  as  yet  clear. 
One  of  these  terms  is  khamustu,  "a  fifth,"  of  which  we  also  find  the  plural 
A;  Aa  wsa^w  "  fifths."  A  "  fifth  "  was  generally  deducted  from  the  sum  of  money 
lent  out  at  interest,  though  who  was  the  ofiicial  to  whom  it  was  paid,  and 
why  it  was  paid,  are  questions  to  which  at  present  I  can  return  no  answer. 
Besides  the  limmu,  or  yearly  eponym,  whose  title  is  always  written  limum, 
we  find  mention  of  the  durdanu,  in  Assyrian  turtanu,  or  "Tartan" 
(G.  XX.  21);  of  a  Rab-zikitum,  or  Chief  Judge;  of  a  Rab-gimelti,  or 
Chief  Magistrate ;  of  a  Rab-aladinnim ;  and  of  a  Rubaum,  or  "prince." 

Most  of  the  deities  mentioned  in  the  tablets  are  Assyrian.  Thus  we 
find  the  names  of  Assur,  Anu,  Istar,  Bel,  Nebo,  Nana  or  Nani,  Samas,  and 
Zu.  Zu,  indeed,  who  occupies  only  a  subordinate  place  in  the  Assyrian 
pantheon,  seems  to  have  been  a  favourite  in  Kappadokia,  if  we  may 
judge  from  the  number  of  proper  names  into  which  his  name  enters. 
Thus  we  have  Ena-Zuim,  "the  eye  of  Zu,"  and  Zu-galia,  " Zu  is  my  priest." 
Another  deity  was  Babu,  "the  gate,"  who  appears  to  have  been  of  Aramaic 
origin.  At  all  events  the  name  is  not  found  in  the  lists  of  the  Assyrian 
divinities,  while,  according  to  Damascius,  the  goddess  Babia  was  wor- 
shipped at  Damascus.  The  Aramaic  name  Bur-Addi,  corresponding  to 
the  Hebrew  Ben-Hadad,  occurs  in  one  of  the  tablets  (G.  ix.  11),  and  we 
meet  also  with  that  of  Bar-'Sibala  (G.  xviii.  2).  Among  the  Semitic 
deities  mentioned  in  the  tablets,  but  not  worshipped  in  Assyria,  is  Basku, 
"the  serpent."  Besides  the  Semitic  deities  there  are,  as  might  be  ex- 
pected, others  of  foreign  origin.  One  of  these  is  Tarku,  whom  I  had  long 
since  maintained  to  be  a  Hittite  god;  a  second  is  Khati,  "the  Hittite" 
(?),  whose  name  enters  into  that  of  a  woman  called  Khati-zadinniat. 

The  introduction  of  Assyrian  deities  into  Kappadokia  explains  the 
proper  names  met  with  in  the  Greek  inscriptions  of  Kappadokia  and 
Kilikia,  which  are  obviously  derived  from  the  names  of  Assyrian  gods. 
Thus  we  have  Nanas  from  Nana,  Nineis  from  Nin,  Nenaris  from  Nan- 
naru.  As  Nineps  is  one  of  the  Kilikian  names  which  have  thus  been 
handed  down  to  us,  it  seems  probable  that  the  name  of  the  Assyrian  god 
Uras,  which  is  often  represented  by  the  two  characters  Nin  and  ip> 
was  really  pronounced  Nin-ip. 

In  place  of  the  name  of  a  particular  deity  we  very  often  have  merely 
the  word  il  or  el,  "god."  In  fact,  the  simple  il  or  el  seems  to  recur  more 
frequently  than  even  the  name  of  Assur.  We  find,  for  instance,  Iquib-il 
(perhaps  "Jacob  is  god")  by  the  side  of  Iquib-Istar  and  Egib-mekhra, 
Ilu-rabu  ("God  is  great"),  Ilu-nada  ("God  has  appointed"),  Asuma-il, 
Erada-il,  Anakh-ili,  Sulaba-il,  Nur-ki-ili,  and  El-Anima  (perhaps  "a  god 
is  Anu, ' '  like  Nani-belim,  ' '  Nana  is  lord  " ) .  This  preference  for  the  simple 
il  —  which  is  also  written  el  —  may  be  due  to  its  substitution  for  the  name 
of  some  foreign  divinity,  but  it  may  also  indicate  the  existence  among  the 
colonists  of  a  tendency  toward  monotheism. 

The  names  of  several  months  are  mentioned  in  the  tablets.  One  is 
Kuzallu  (G.  iii.  12),  which,  according  to  a  lexical  tablet  {W.  A.  I.  v.  43, 
14),  was  a  name  of  the  month  Sivan.  As  the  great  cylinder  inscription 
of  Tiglath-pileser  I.  is  dated  in  this  month,  its  name  may  be  regarded 
as  a  witness  in  favour  of  the  early  date  of  the  Kappadokian  tablet. 
Another  month  is  Kur-sarani  or  Akh-saranim  (G.  iv.  7 ;  x.  8),  while  a  third 
is  arkhu-sa-zarati,  "the  month  of  sowing"  (G.  vi.  12,  13),  and  a  fourth  is 
lyyar-Qamarta  (G.  ix.  9).  Here  the  word  Qamarta  seems  to  be  the  native 
name  of  the  Assyrian  lyyar  or  April,  the  whole  name  signifying  ."the 


698  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS       [Part  IV. 

month  of  the  bull  Qamarta."     A  fifth  month  was  that  of  Napisti-Zuim, 
the  month  of  "the  life  of  the  god  Zu "  (G.  xi.  9). 


One  maneh  of  refined  silver  Kura  transferred;  Iqib-il  has  (it). 
He  has  lent  (it) ;  the  fifth  ^  belongs  to  Bil-akh-Asur  the  son  of 
Gadidi.  The  month  Akh-saranim,  the  yearly  eponym  being  Ilu- 
rabu.  After  11  fifths  he  shall  pay  the  capital,  but  he  has  not  yet 
paid  the  one  shekel  and  a  half  which  he  registers  (as  interest)  each 
month  upon  the  maneh.  The  witnesses  are  Ilu-nada,  Amur-Asur 
(and)  Banaga. 

II 

Two  manehs  (and)  10  shekels  of  silver  Asuma-il  has  transferred ; 
Zaki  [m]-il  has  (them).  After  two  months  he  shall  repay  (them). 
And  he  registers  the  sum  (for  interest)  as  6  manehs,  but  he  has  not 
yet  paid  (anything).  The  manehs  (belong)  to  himself  alone. 
Half  a  maneh  of  silver  of  the  property  ^  he  registers  on  a  duplicate, 
and  the  six  remain(^).  The  witnesses  are  Barruwa  the  son  of 
Nabate,  Arzana-mil(?)ku  his  brother,  (and)  Anina. 

Ill 

[Twenty]  manehs  of  silver  Garia,  Asa'su  and  Mer-esu  the  prince 
have  given  as  a  pledge  to  Iqib-il.  For  the  20  manehs  of  silver 
Supuna  his  brother  asks,  and  the  Rab-aladinnim  who  is  the  Chief 
Judge  has  effected  the  transfer  by  hand  in  the  month  Napisti- 
Zuim,  the  yearly  eponym  being  Suma.  Ten  manehs  of  silver  at 
harvest-time  he  shall  pay;  10  manehs  of  silver  at  the  second 
harvest  he  shall  pay,  and  the  amount,  namely,  the  20  manehs  of 
Garia,  Asa'su  and  Mer-esu,  Supuna  his  brother  shall  repay  to  the 
brothers ;  and  as  for  the  20  manehs  of  silver,  they  shall  weigh  them, 
even  the  silver,  on  the  head  of  Garia  his  brother.  The  witnesses 
are  the  man  who  binds  their  houses  and  their  cities,  the  Rab- 
gimeltim  (and)  Kumri  of  Dinkisa. 

IV 

To  the  daughter  of  [her]  father  say  thus  :  My  daughter  is  good, 
and  as  for  me,  we  have  listened  to  thy  letter  which  Samas-tabba'i 

^  Khamustim.  The  "fifth"  seems  to  mean  an  instalment  of  interest 
here. 

2  Or  of  "the  deposit"  (isati)  which  he  "holds"  (isu). 


Chap.  XXIV,  §  2,  6.]      CUNEIFORM   TABLETS   OF   KAPPADOKIA  699 

has  brought  me,  and  I  answer  thy  letter  thus :  I  also  send  an  an- 
swer as  follows  :  As  regards  the  manehs,  behold  (they  are)  the  inter- 
est on  the  property  of  our  seed ;  ^  three  of  them  for  a  ndsbutim  are 
fixied;  two-thirds  is  thy  property.  I  have  seen  Samas-tabba'i 
asking  for  a  share  in  the  inheritance,^  whom  thou  hast  sent  to  me, 
saying :  Behold  all  the  inheritance !  And  iba^si  have  not  been 
given.  But  let  thy  orders  go,  (for)  iba'si  have  not  been  given. 
To  the  presence  of  our  brother  take  it,  and  he  will  arrange  every- 
thing. And  the  law  of  thy  god  .  .  .  thy  seat  .  .  .  the  letter  do 
not  give. 


To  Amur-Samas  and  Aladinim.  To  Aladinim  say  thus :  They 
have  numbered  the  tablet  before  AssuR,  and  I  and  Padu  have 
devoted  one  maneh  and  a  half  of  silver  (written)  on  the  tablet  in 
ganis ;  and  that  it  never  become  (private)  property  they  have  bound 
a  shekel  of  silver  in  a  case{  ?).  I  have  given  thy  tablet  [to  Amur-] 
Samas ;  he  has  taken  the  ...  "  Amur-Samas,  thy  brother,  (is) 
our  brother,"  —  behold  the  words  of  the  tablet,  which  do  thou 
give  to  Amur-Samas ;  and  also  thy  tablet  (is)  evidence  for  the 
silver  above-mentioned,  the  (private)  property,  (and)  the  shekel 
of  silver  belonging  to  thy  tablet.  And  the  rest{  ?)  of  the  (private) 
property  among  the  seed  of  my  father  and  among  my  own  seed 
Amur-Samas  shall  never  take ;  and  also  I  add{  ?)  to  the  silver  the 
(private)  property  (described)  on  thy  tablet  (and)  the  deed  which 
I  will  never  violate. 

VI 

To  Iqib-il  say  thus:  Isma-Asur  my  little  one  has  lent  the 
hurnat,  our  property;  they  have  not  brought  (it)  back;  (and) 
the  agur,  thy  property,  they  have  not  brought  back ;  and  behold  I 
did  not  give  him  (anything)  in  the  whole  of  what  is  sent{l),  .  .  . 
and  thou  sendest  to  me  Qama-Asur :  he  does  not  make  small  the 
eye ;  thy  orders  thou  hast  taught  him,  and  thou  hast  not  taken  the 
6  manehs  of  silver  which  Sulaba-il  gave  me.  One  maneh  of  silver 
which  (is)  in  the  keeping {"i)  of  Sulaba-il  ... 

^  Sadu  ziri-ni.  But  it  is  also  possible  to  read  sa  dugiri-ni,  "which 
thou  hast  transferred  to  me." 

2  Asume  rasaum.  Asume  must  have  the  same  root  as  the  Assyrian 
usmanu,  "baggage."  Compare  the  name  of  the  Hamathite  god  Ashima 
(2  Kings  xvii.  30). 


700  ANCIENT  AND   PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 


VII 

To  Khanu[ni]-Nabim,  Iqib-il  and  Asur-malik  say  thus :  My 
father,  my  lord,  the  master  left  a  tablet  (of  legitimacy)  to  myself 
at  my  birth,  and  now  I  hear  a  letter  about  "the  ox  of  a  foreigner"  ; 
and  I  do  not  send  to  the  city  saying :  At  the  [second  ?]  gate  the 
sheep  I  have  .  .  .,  I  have  slaughtered(  ?) ;  [to]  the  city  thou  dost 
not  send  [saying :]  say :  for  the  prey^l),  O  my  son,  thou  shalt  go 
until  that  day  (whereon)  one  .  .  .  the  master  .  .  .  and  I 
went  to  my  father  until  that  day  (whereon)  I  he[ar]  that  [letter] 
speaking  of  "the  ox  of  a  stranger";  the  sheep  .  .  .  and  I  have 
gone  a  long  way  and  [to]  the  midst  of  the  [mo]untain  I  ascended, 
and  thus  I  am ;  and  the  elders  have  sent,  (saying  that)  I  should  go, 
by  the  hand  of  Eriti.  I  have  gone  a  long  way  to  the  cities  [which] 
thou  gavest  me :  the  tablet  about  the  4  oxen  .  .  .  until  I  shall  cause 
(them)  to  be  given.  [And  now]  [af]ter  travelling  a  long  way  and 
bringing  (them)  I  hear  that  as  regards  my  property  (which) 
Ganis  has  taken  he  will  restore  (it)  to  me  .  .  . 


VIII 

Eighteen  and  a  half  shekels  of  refined  silver  Dadia  the  son  of 
Nani-belim  has  transferred;  Asur-malik,  the  son  of  Ena-Zuim 
the  son  of  Zu-galia  has  (them).  After  ^ve  months  he  shall  repay 
them,  but  he  has  not  yet  paid  one  shekel  of  the  same.  He  shall 
register  a  duplicate  during  the  month.  (Dated)  the  month  Kuzalli, 
the  yearly  eponym  being  Asur-imedi  the  sailor.  The  witnesses 
are  Ena-Asur  the  son  of  Erati  (and)  Garia  the  son  of  Gimil-Belim. 


IX 

Fourteen  shekels  of  silver  Birati  has  transferred,  Asur-rabu 
holds  (them).  They  have  taken  the  fifth  of  Asur-malik  and 
Enna-Zuim.  After  ten  fifths  he  shall  repay  the  money;  but  he 
has  not  yet  paid  (it).  He  shall  register  a  duplicate  according  to 
the  language  of  the  foreigner.  (Dated)  the  month  of  sowing,  the 
yearly  eponym  being  Sagati-Asur.  He  has  made  the  copy  the 
same  day  that  he  arranges  the  partnership.  In  his  kurumeti  he 
writes  the  sum  of  silver.  Witnessed  by  Asur-rabu  (and)  Id(?)-sa- 
Asur. 


Chap.  XXIV,  §  2,  6.]      CUNEIFORM   TABLETS   OF   KAPPADOKIA  701 

X 

On  two  manehs  of  silver,  which  Istar-nama  has  given  on  mort- 
gage to  Asur-rabu,  they  have  taken  half  a  maneh  of  silver  as  the 
fifth  of  Asur-bel-amatim.  The  silver  and  its  voucher { ?)  Erada-il 
has  taken;  Ili-bani  has  weighed  it,  and  Asur-rabu  returns  (it) 
to  Ili-bani,  Erada-il  keeps  it.  The  witnesses  are  Asur-malik, 
GuUaba  (and)  ... 

XI 

One  maneh  of  unrcfned{  ?)  silver,  in  the  presence  of  the  brother, 
of  Ganis,  Sarkhunu  has  transferred;  Anakhili  holds  (it).  They 
have  taken  the  fifth  of  Asur-malik  the  son  of  Zu-galia.  (Dated) 
the  month  Akh-sarani.  After  a  month  he  shall  repay  [the  money]. 
The  witnesses  are  Dumana  the  foreigner,  Dubduba,  (and)  Rakima- 
( ?)-ibri.     His  house,  his  furniture  and  his  gurru  I  inspect. 

XII 

Thirteen  and  a  ner  shekels  of  silver,  thy  share,  I  have  given  on 
mortgage  and  Zu-takhziz  has  given  judgment;  the  breast  (and) 
head  Izmetas(?)  has 5^mc^*(?)  saying:  "I  have  paid  the  15  shekels 
of  silver  that  they  may  not  be  given  back :  I  have  weighed  the  rest, 
fifteen  shekels,  for  Sakima  the  son  of  my  brother.  The  payment  of 
20  manehs,  even  the  manehs  (inscribed  on)  the  tablet,  (and)  the 
additional  sum  which  is  repeated  on  its  enclosure,  I  have  given." 
The  manehs  he  has  taken  for  thee  saying :  Asur  has  appointed  that 
to  Mar-ki-Asur  the  grandson{  ?)  of  Asur-ki-naram  and  (to)  Samas- 
tabba'i  it  should  be  said ;  to  Mar-ki-Asur  it  should  be  said  :  "The 
33  manehs  he  has  taken  we  have  certified,  and  I,  thy  .  .  .,  have 
entered  into  the  house  of  Abu-salim  the  son  of  Asur-emuki,  and 
Sakima  .  .  .  1^  manehs  of  silver.  The  rest  of  the  silver  and 
[gold  ?  belongs  to]  Sakima,  the  son  of  the  brethren.  To  the  place 
of  his  sakhut  we  have  ascended." 


XIII 

Twenty  mules  for  a  chariot  in  good  condition,  10  mules  the 
offspring  of  a  mule  in  good  condition,  10  (mules)  of  Ku'su,  linen 
in  good  condition  for  the  clothing  of  royalty,  (and)  the  rest{^)  of 
the  mules  of  the  country  in  good  condition,  belonging  to  El-ugar, 
all  the  mules  they  shall  value  to  El-ugar,  in  all  80  mules  in  good 


702  ANCIENT  AND  PRIMITIVE   LEGAL  TRANSACTIONS        [Part  IV. 

condition  shall  be  valued  to  El-ugar.  For  a  receipt{?)  the  pur- 
chasers ask  him,  and  one-third  of  a  maneh  (and)  five  shekels  in 
silver  to  El-ugar  are  paid. 

XIV 

Four  manehs  of  refined  silver  Salsu(?)-tida  the  son  of  Khiti-ili 
has  lent  to  Tarku-zar(?)bam;  the  fifth  belongs  to  Asur-imedi 
and  Asur-rabu.  After  4  years  he  shall  pay  8  manehs  of  silver. 
Karmadu  (is)  limmu.  Sagati-sudua  has  taken  it,  namely  the  sil- 
ver; for  his  .  .  .  days  Tarku-zar(  ?)ba  shall  have  full  posses- 
sion of  the  whole,  and  Salsu(?)-tida  shall  deliver  to  him  the  whole 
of  it  entirely,  and  Eratim  has  taken  the  place  of  Salsu(?)-tida  who 
is  absent.     Witnessed  by  Lalim  and  Kinanim. 


NO.  7.    WILL  OF  SENNACHERIB,  KING  OF  ASSYRIA  i 

I,  Sennacherib,  [705-680  B.C.]  king  of  multitudes,  king  of 
Assyria,  have  given  chains  of  gold,  stores  of  ivory,  a  cup  of  gold, 
crowns  and  chains  besides,  all  the  riches  of  which  there  are  heaps, 
crystal  and  another  precious  stone  and  bird's  stone :  one  and  a 
half  manehs,  two  and  a  half  cibi,  according  to  their  weight :  to 
Essar-haddon  my  son,  who  was  afterwards  named  Assur-ebil- 
mucin-pal  according  to  my  wish ;  the  treasure  of  the  Temple  of 
Amuk  and  (Nebo)-irik-erba,  the  harpists  of  Nebo. 

^  [Translated  by  Rev.  A.  H.  Sayce.  Reprinted,  by  permission,  from 
''Records  of  the  Past"  (Vol.  I,  p.  136),  published  by  Samuel  Bagster  and 
Sons,  London.]  It  is  the  earliest  example  of  a  Will  extant.  [But  cf. 
Ch.  XXIV,  See.  i.  No.  1,  an  Egyptian  WHl  of  the  Fourth  Dynasty.]  The 
original  document  is  printed  in  the  third  volume  of  the  "Cuneiform  In- 
scription of  Western  Asia,"  pi.  16,  No.  3. 


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